author: Johnson, J.

text:
    Huston v. Crook.
    The heirs apparent of a testator consisted of several children and three grandchildren, by a deceased daughter. He gave to each by name a specific legacy, and by a residuary clause directed that the proceeds of certain personal property should be “ divided equally share and share alike between all my aforesaid heirs.” Held: That each of the grandchildren took an equal share with the children of the testator.
    Error to the District Court of Montgomery county.
    Charles Crook and "Walter Crook, executors of the will of Thomas Crook, deceased, filed a petition to. obtain a construction of the 14th and 15th items of the will of their testator and to be instructed as to what distribution of the personal estate should be made under said clauses.
    They read as follows:
    “ Fourteenth. It is further my will, that after my decease all my personal property not hereinbefore mentioned, shall be sold, and tbe proceeds thereof divided equally, share and' share alike, between all of my aforesaid, heirs.
    “ Fifteenth. It is further my will, that after the decease of my wife, Anna Crook, aforesaid, all the personal property, herein set apart for her use, and all the property that she, the said Anna, may have acquired by and from the use of the farm aforesaid, shall be sold, and the proceeds of said sale divided equally, share and share alike, between all my heirs aforesaid, or their legal representatives.”
    This will was dated July 6, 1866. At that time the testator had five sons and two daughters, whom he designates as such in certain specific legacies he gives them. He also had three grandchildren, the heirs of a deceased daughter, to whom he also gave specific legacies, though he does not describe them as grandchildren. He also gave his wife a life estate in the homestead farm and the personal property thereon, but as she died before her husband, the residue disposed of by the loth item of the will passed into the executor’s hands, to be distributed as the other undevised personal property, under the 14th item aforesaid.
    Oliver Crook, one of the sons, to whom a specific legacy was given, died before the testator, and by a codicil his widow and children were to have specific legacies in money, as their share, and no more. The court finds that the effect of this codicil was to make a sjoecial provision for the widow and heirs of Oliver, and to exclude them from the specific legacy to him and also to exclude them from being heirs under items 14th and 15th. A further statement of the facts is unnecessary, as the only questions saved for report are: Whether the three grandchildren named in the will, and who are plaintiffs in error here, receive any part of said personal estate devised by items 14 and 15 of said will, and, if so, in what proportion ? The common pleas held that they did, and that they took in equal shares with the children of -the testator. The district court also held that they did, but that they took per stirpes the share of their mother.
    To reverse this, is the object of this proceeding in error.

      D. Thew Wright ■ and W O. Howard, for plaintiffs in error.

      Warren Hunger, for defendants in error.
   Johnson, J.

By the 14th and 15th items of his will, the testator directs that the proceeds of his personal estate be divided, “ equally, share and share alike, between all my aforesaid heirs.” At the time these words' were used and when the will took effect, he had children, and three grandchildren, the heirs of a deceased daughter. In the preceding clauses of the will, these children and grandchildren were each named, and he gave to each a specific legacy.

None of these were heirs in the strict legal sense, as he was then living, but each was an heir apparent, and each would have been an heir, had he died intestate. Hence the phrase, “all my aforesaid heirs,” was used to expressly include all such as were in fact heirs apparent. These residuary clauses of the will, did not direct a division among “ all his children,” or “ all his sons and daughters ” but “ between all his aforesaid heirs.” There is nothing found elsewhere in the provisions of this will, to warrant us in limiting this comprehensive expression to part only of' his heirs. To hold, that this phrase includes some of the heirs and excludes others, would do violence to the well-settled rule of construction, that the intention of the testator must be discovered from the words used, in connection with the other provisions of the will. The explicit direction that this division should be made “ equally, share and share alike,” entitles these grandchildren to talceper capita, and not per stirpes. Had this direction as to equality been omitted, a different result might have been reached in accordance with the judgment of the district court, and in harmony with numerous well considered cases, but the testator has left nothing for construction on this point. Each is to have an equal share. Dagget v. Slack, 8 Met. 450; Downing v. Smith, 3 Beav. 541; Lord v. Moore, 20 Conn. 122; Tuttle v. Pints, 68 N. C. 543; Vannorshall v. Van Deventer, 51 Barb. 138; Harris v. Philpot, 5 Ired. Eq. 324; Nutter v. Vickery, 64 Maine, 490; Lemacks v. Glover, 1 Rich. Eq. 141; Witmer v. Ebersole, 5 Pa. St. 458; Campbell v. Wiggins, Rice Eq. (S. C.) 10; Ort’s Appeal, 25 Pa. St. 267.

Judgment accordingly.


source: Caselaw Access Project

author: White, J.

license: Public Domain

text:
    Crabill v. Marsh.
    1. On a verbal agreement for the conveyance of land, the payment of the purchase money, whether made in money or services, will not take the agreement out of the operation of the statute of frauds.
    2. In an action to recover compensation in lieu of the specific performance of an agreement for the conveyance of land, on the ground tiiat specific performance has become impracticable, the real representatives of the deceased selling party are necessary parties ; and if they have disabled themselves from performing the agreement, they are the parties chargeable with making compensation.
    Error to the District Court of Clark county.
    The original action was brought by Nancy Marsh in the court of common pleas of Clark county, against William IT. Crabill, executor of Nathan Marsh, deceased. It appears from the petition that Nathan Marsh made his last will and testament on the 21st day of October, 1867, by which he gave to John Marsh, his only child, a large amount of personal property and real estate, which included a tract of 320 acres on which said Nathan resided ; that the plaintiff was married to John Marsh in November, 1869, and after said marriage they lived with said Nathan on his farm and assisted him in the management and control thereof; that John died in October, 1870, intestate and without issue, leaving the plaintiff surviving him; that soon after the death of said John the plaintiff proposed to remove from the farm of the said Nathan and return to her father’s house!, to which Nathan, being in feeble health, objected, and proposed .to the plaintiff that if she would live with him, superintend his home, care for and nurse him during the remainder of his life-time, she should have the. principal portion of his estate and should have all the property by him bequeathed to his son John by his said will; and that he would convey the same to her by deed or will. . It is averred that she accepted this proposition and continued to live with him until his death, and performed the agreement on her part. It is also averred that he did not convey the property by deed or will, or provide for her as he had agreed. For the non-performance of the agreement damages are claimed.
    The second defense of the answer sets up that the said pretended agreement was within the statute of frauds, the same not being in writing nor any note or memorandum' thereof. To this defense the plaintiffs demurred, and the demurrer was sustained. The other defenses traversed the averments of the petition. On the issues thus raised the case was submitted to a jury.
    At the conclusion of the evidence the defendant, among other things, requested the court to instruct the jury as follows.
    “ 2. The fact that a daugliter-in-law continues to live with her father-in-law after her husband’s decease, as his housekeeper, in the same capacity in which she lived with him during the life-time of her husband, is not such part performance of an oral contract made after the death of the husband for the purchase of land as will take the contract out of the operation of the statute of frauds, and if the jury find this to be the only extent to which the plaintiff has performed the alleged contract they must find the contract to be in writing before they can find for the plaintiff.

      “ 3. That the value of the property devised and bequeathed to John is not the fixed and determinate measure of damages that the plaintiff is entitled to recover in this action.”
    These instructions the court refused to give, to which refusal the defendant excepted. A verdict was returned for the plaintiff, on which judgment was rendered. On error this judgment was affirmed by the district court; and the present petition in error is prosecuted to reverse these judgments.
    Bowman, Pringle de Scott, for plaintiffs in error, and John H. Littler, for some of the heirs :
    The demurrer to the second defense should have been overruled. The case is within the statute of frauds, 1 S. & C. 659. This is not a suit in equity for specific performance, and whatever may be the rule in equity, as to performance or part performance, taking the case out of the statute, we submit that the rule does not apply to actions at law. 3 Parsons on Contracts (6th ed.) 59 ; Chitty'on Contracts, 329; 2 Johns. 222. "Where equity interferes it is to prevent fraud. Baldwin v. Palmer, 10 N. Y. 244; Boyd v. Stone, 11 Mass. 348. As to the effect of part performance, see 1 Pick. 328, 331, 332; 1 Metcalf, 485; 6 Pick. 516; 6 Paige, 288; 18 Conn. 231; Brown on Statute of Frauds (2nd ed.) 454, § 451; King v. Brown, 2 Hill, 485; Lisk v. Sherman, 25 Barb. 433; Davis v. Moore, 9 Rich. (S. C.) L. 215; 43 N. Y. 555; Mathers v. Scotas, 35 Ind. 1; Wood v. Jones, 35 Texas, 64; 37 N. H. 185; 78 Ill. 124; 65 Ill. 395; 81 Pa. 517; 57 Id. 457; Overmeyer v. Koerner, 81 Pa. 517; Erben v. Lorillard, 23 Barb. 82; 19 N. Y. 299; Lisk v. Sherman, 25 Barb. 433; Sites v. Keller, 6 Ohio, 483; Pollard v. Kinner, 6 Ohio, 528; Armstrong v. Kattenhorn, 11 Ohio, 265; Shute v. Dorr, 5 Wend. 204; McNair v. Compton, 35 Pa. 23; Bender v. Bender, 37 Pa. 419; 43 Id. 441; Brown on Frauds, § 124, p. 127; Id. § 129, pp. 130, 134; Bartlett v. Wheeler, 44 Barb. 162; Campbell v. Campbell, 65 Barb. 639; Milliken v. Drew, 67 Pa. 250.

      Harrison, Olds & Marsh, and Spence ds Arthur, for defendant in error:
    I. The contract itself was of such a nature that complete performance of it, on the part of the plaintiff, withdrew it, wholly, from the stature of frauds. The agreement was not one of mere hiring, nor was it an agreement between strangers into -which mere pecuniary considerations entered.
    This son married the plaintiff, and about a year afterward he died, leaving her his widow and sole heir-at-law. At the request of her father-in-law, she then agreed with him to devote all her energies, so long as he should live, in meliorating his condition, by personally superintending his household affairs, and caring for, watching over, and nursing him, and giving liim her companionship and society. This involved, upon her part, serious risks and sacrifices, in many ways: 1. The duration of the service was uncertain. It had but a single limitation — it was not to terminate until Nathan Marsh should depart this life. Stress was laid upon this element in the agreement in the case of Rhodes v. Rhodes, 3 Sandf. 279.
    2. She not only bound herself to do everything in her power to promote the comfort and happiness of the old gentleman, but also to refrain from doing anything, however valuable or desirable the same might be to her, which would or might be inconsistent or interfere, in any degree, with an assiduous and constant and faithful discharge by her of the obligations so assumed by her to him. The character of the undertaking, upon her part, to be performed was such that she thereby absolutely prechided herself from marrying again during his life-time ; and he might have lived many years. She was a young woman. She was also obliged to forego her naturally fond desire to return to her former home.
    3. She might not have suiwived him. In that event, she would not have received any compensation, no matter how many years of her life she might have spent in ministering to his comfort. It is plain that the considerations which entered into this agreement cannot be estimated or measured in dollars and cents. Sutton v. Hayden, 62 Mo. From these premises the conclusion follows, that Mrs. Marsh cannot be restored to the position or situation she occupied before her execution of the contract. On the contrary, by making and performing it, she was put in such a situation that it would be a palpable fraud upon her not to grant her the benefit of full performance, or what will be equivalent to full performance, of the contract upon the part of the other contracting party. The contract, therefore, was withdrawn wholly from the operation of the statute. But where the consideration consists of services to be rendered, which are of such a peculiar character that it is impossible to estimate their value to the vendor by a pecuniary standard, and the parties did not intend to measure them by such a standard, the performance will entitle the ver dee to enforce the contract, notwithstanding it was by parol. Browne St. of Frauds, § 463; Pomeroy Sp. Perf. Cont. §§ 114,135 ; Rhodes v. Rhodes, 3 Sandf. Ch. 279; Twiss v. George, 33 Mich. 253; Davisson v. Davisson, 2 Beasl. 426; Johnson v. Hubbell, 2 Stockt. Ch. 332; Frost v. Tarr, 53 Ind. 390; Van Dyne v. Freeland, 3 Stockt. Ch. 370; Chastian v. Smith, 30 Geo. 96; Gupton v. Gupton, 47 Mo. 37; Bell v. Hewitts Executors, 24 Ind. 280; Bonnon v. Urton, 3 G. Green (Iowa) 228; Malins v. Brown, 4 N. Y. 403; Mundy v. Joliff, 5 Myl. & C. 117; Bishop on Contracts, § 505.-
    II. The plaintiff was entitled to recover the judgment below. It is immaterial whether the plaintiffs right of action was one of legal cognizance or of equitable cognizance merely. In either case she was entitled to recover the judgment which the plaintiff in error seeks to reverse. A court of chancery does not entertain jurisdiction where the sole object of the petition is to obtain compensation in damages for the breach of a contract, except where the contract is of equitable cognizance merely. Where the contract is valid at law, as well as in equity, the ground for the interference of a court of equity does not exist, because there is no failure of the remedy at law. Willard Eq. Jur. (Potter’s ed.) 291, 309, 310; Story Eq. Jur. §§ 724, 798, 799; Morrs v. Elmendorff, 11 Paige, 277, 288; 1 Hoffm. Ch. 470; 47 Mo. 37.
    But if a contract is of equitable cognizance merely, because it is valid in equity only, and there is not an adequate remedy at law in favor of the injured party, a court of chancery has jurisdiction where the sole object of the petition is to obtain a specific execution of such contract, or to obtain compensation in damages for its breach. See authorities last cited, and Rees v. Smith, 1 Ohio 124, 130, 131; Gibbs v. Champion, 3 Ohio, 337; Dustin v. Newcomer, 8 Ohio, 49; Peabody v. Tarbell, 2 Cush. 226; Andrews v. Brown, 3 Cush. 130; Pomeroy Sp. Perf. of Cont. § 480; Pomeroy Rem. by Civil Action, §§ 76-85; Sternberger v. McGovern, 54 N. Y. 12, 20-21; Hamilton v. Hamilton, 59 Mo. 232; Gupton v. Gupton, 47 Mo. 37, 47.
    III. In this state, such oral contracts as the statute of frauds provides shall be in writing, may be enforced either on the law or the equity side of the court, which has original jurisdiction in all civil actions when such contracts have been fully performed by the plaintiff, and the acts of performance are of such a nature as to wholly withdraw the contract from the operation of the statute. Such cases are, in Ohio, held not to be within the design or prohibition of the statute, Full and complete execution of the contract by the plaintiff here creates an estoppel, on both sides of the court, against the plea of the statute by the defendant. Wilbur v. Paine, 1 Ohio, 251; Moore v. Beasley, 3 Ohio, 294; Armstrong v. Katterhorn, 11 Ohio, 265; Grant v. Ramsey, 7 Ohio St. 157; Abbott v. Inskip, 29 Ohio St. 59; 1 Smith L. C. pt. 1, p. 592; Brannon v. Urton, 3 G. Green, 228; Bell v. Hewitt's Executor, 24 Ind. 280; Frost v. Tarr, 53 Ind. 390; Suggett v. Carson, 26 Mo. 221; Bryan v. Southwestern R. R. Co., 37 Geo. 25; Philbrook v. Belknap, 6 Vt. 383; 1 Root, 142, 233, 479; 2 Root, 191, 387; 7 Conn. 224; 14 Conn. 119; 18 Conn. 222. Howard v. Brower, 37 Ohio St. 402, is distinguishable from this in that, 1. The contract in that case was one of mere hiring. Pecuniary considerations alone entered into it. It had not a single element or feature of “ a family arrangement ” into which other considerations than those which are merely pecuniary enter and predominate. 2. In that ease the decedent promised to pay Brower the reasonable value of his services, and, also, “ $10,000 in land or money” — not any specific specified land, but any land worth $10,000. In this case the promise was to convey to the plaintiff certain specified land, and also certain chattel property, as well as $5,000 in money. In Brower’s case, that part of the promise of the decedent which was within the statute could not be separated from that which was not within it. On this point see Metcalf on Contracts, 253; Rand v. Mather, 11 Cush. 1; Haynes v. Nice, 100 Mass. 327; State v. Finley, 10 Ohio 51, 55.

      Bowman, Pringle (& Scott, in reply :
    1. The alleged contract, if established, was not taken out of the statute of frauds by part performance. Fry on Sp. Perf. 251, §384; Wheeler v. Reynolds, 66 N. Y. 232; Pomeroy on Sp. Pei\ 152; Browne on Statute of Frauds, 458; Story Eq. Jur. §§ 762, 764; Gosse v. Jones, 73 Ill. 508; Knott v. Harvey, 19 Wis. 110; 1 Parson on Contracts, 531, n. e and cases cited; Titman v. Titman, 64 Pa. St. 480; Pillage v. Pillage, 32 Wis. 136. An examination of the authorities cited in the argument in behalf of defendant in error will disclose that they, while they are a skillful collection of very peculiar cases, are all within the foregoing principle.
    2. Even if the plaintiff’s acts of part performance did establish the existence of a contract, they would still not take the case out of the statute of frauds. The services which she rendered were not peculiar. Nathan Marsh was a man of wealth, and had a comfortable home. She lived with him about three years and superintended his household affairs. Nathan'Marsh was not sick, nor was there anything in his condition requiring services incapable of being measured by a pecuniary compensation. It is not shown by the evidence that the plaintiff rendered any services out of the ordinary course. We submit that the true rule is stated in Cronk v. Trumble, 66 Ill. 428. This case is altogether analogous to the case of Howard v. Brower, 37 Ohio St. 402.
    3. Part performance tabes a contract out of the statute of frauds in equity only, and hence it does not entitle the plaintiff to maintain the judgment in this case. The petition is-against the executor of Nathan Marsh alone; his lieirs-at-law. are not made parties. It does not seek specific performance of the contract or any remedy in equity. The petition avers-: 1st. The making of the contract. 2nd. Its performance by the plaintiff. 3rd. A breach of the contract by Nathan Marsh. 4th. The presentation of a money claim to the executor for the damages sustained by the breach of the contract.. It is not alleged in the petition that Nathan Marsh did any act which disabled him from the performance of the contract, nor that any state of facts existed, at the time of the filing-,- of the petition, which rendered a specific execution of the contract impracticable, nor wras any evidence offered to establish any such state of facts, nor was any claim of the kind ever made in the case until the plaintiffs filed their argument in this court-.
   White, J.

This case is governed by the decision in Howard v. Brower, 37 Ohio St. 403. In that case, as in this, the action was brought against the personal representative of the deceased contracting party for the recovery of money only ; and before the adoption of the code would have been an action at law to recover damages for the breach of the alleged contract.

On behalf of the defendant in error, the present case is sought to be distinguished from Howard v. Brower, on the ground that the’present case may be regarded as an equitable action brought to recover compensation in lieu of specific performance, where specific performance has become impracticable.

In such a case, as respects the land, the real representatives of the deceased were the necessary parties to be sued' for the specific performance of the agreement; and if they should be found to have disabled themselves from so doing, they are the parties to be charged with making compensation. But the petition does not assert any cause of action against them, nor are they parties to the action. The distinction, therefore, sought to be made between the two cases cannot be supported.

The present case is as clearly within the statute of frauds .as the case of Howard v. Brower, supra.

That mere payment of the purchase money, whether made in money or services, will not take the case out of the operation of the statute, we regard as well settled. Sites v. Keller, 6 Ohio, 484; Pollard v. Kinner, Id. 528; Armstrong v. Kattenhorn, 11 Id. 256; Ham v. Goodrich, 37 N. H. 185; Horn v. Ludington, 32 Wis. 73; Temple v. Johnson, 71 Ill. 13; Sutton v. Rowley, 44 Mich. 113.

' But we are not called upon, in this case, to determine under what circumstances equity will, or will not, decree specific performance of a parol agreement for the devise or conveyance •of lands. .Such is not the character of the case before us. The ground upon which courts of equity interfere, in such ■cases, is that of fraud. The jurisdiction is founded, not upon the agreement,'but upon the fraud. And a mere refusal to perform a parol agreement, void under the statute of frauds, is in no sense fraud, either in law or equity. Wheeler v. Reynolds, 66 N. Y. 227.

In the present case we are unanimous in the opinion that the agreement sued on is within the statute, and the plaintiff in error is not chargeable with its breach.

Judgment reversed, verdActset aside, demurrer to the second defense overruled, and cause remanded to the court of common goleas for further goroceedi/ngs.


author: Okey, O. J.

text:
    Norwalk National Bank v. Sawyer.
    1. Money borrowed by one partner, on Ms individual credit, will not become a debt of the firm by being used in its business • and the rule is not different where the money was loaned for the purpose of enabling such partner to pay to the firm Ms portion of a specified-sum which each partner had agreed to contribute in order to increase the firm’s capital.
    2. Land purchased with partnership funds, and occupied and used by the firm in conducting its business, is partnership property, although the conveyance is made to the individual members of the firm; and a third person having knowledge of such facts, who takes from one of the partners a mortgage on his undivided interest in such land to secure the individual debt of such partner, will be postponed to the lien of a firm creditor whose debt accrued subsequently to the execution of such mortgage.
    Error to the District Court of Huron county.
    In 186,3, or early in 1864, George W. Clary, Seymour B. Martin and Daniel Packard agreed to enter into a partnership, under the firm name of Clary & Co., to carry on distilling grain at Monroeville, Huron county. At the time the partnership was actually formed (February 12, 1864), they purchased and received a conveyance of certain real estate at Monroeville, upon which there was a distillery. The conveyance was made to them individually, and not as a firm, and on the face of the instrument they were simply tenants in common. In fact, however, they purchased as partners, the consideration named was paid by them out of the partnership moneys, and the property was from that time occupied and used by them in the prosecution of the partnership business.
    In August, 1864, Packard sold and conveyed his interest in the partnership and its property to Clary and Martin, and withdrew from the firm, and the remaining members carried on the business in the same property, in the same firm name, until the spring of 1874, when they failed. Recently both Clary and Martin died.
    In June, 1873, Clary & Martin, desiring to increase their capital stock, agreed that each should put into the firm, to be used in the business, the additional sum of $5,000. On June 7, 1873, Clary obtained his $5,000, on his promissory note to II. P. Stentz, on which note James Sawyer became his surety, and the money was used by the firm in its business, as was also the sum advanced by Martin. In order to secure Sawyer as such indorser, Clary, at the time the money was obtained, conveyed to him his undivided half of the property hereinbefore mentioned, and, also, for the same purpose, conveyed to him, by another instrument, other lots of which he was sole owner. Although those instruments were in the form of absolute deeds, they were, in equity, by the agreement of the parties made at the time they were executed, only mortgages to save Sawyer harmless from the payment of the $5,000 for which he became surety. Sawyer, at the time, knew that the distillery property was occupied and used by the firm in its business, and he testified as follows: “ Two deeds were made, because the lots were individual and the distillery was company property, and it was so distinguished in the deeds.” A question is made as to the sufficiency of the delivery of those instruments, but it may be assumed, for the purposes of this report, that they were properly delivered.
    On,February 6, 1874, under the erroneous belief of the parties that the instruments had become void, for the reason that they had not been recorded within six months after their execution, the parties destroyed both instruments, and Clary executed and delivered to Sawyer like' deeds of that date, under the same agreement, that the instruments should become void if Clary paid said sum of $5,000 and interest. In the instrument containing a description of the distillery property, it is stated that the premises are “ known as Clary & Co.’s distillery property, being about three acres of land, on which is sitting the still-house, hog-pens and cattle-barns. The above described premises are now occupied by Clary & Co., and were deeded to Clary & Co., by Orlando Quirnby, on the 12th day of February, 1864, and recorded in Huron County Records of Deeds, vol. 16, pages 58 and 59.” These instruments were deposited with the county recorder for record on April 9, 1874.
    The proceeds of the lots belonging to Clary in his own right being insufficient to pay the debt of $5,000, Sawyer was compelled to satisfy the indebtedness, and the amount remaining due to him is more than $3,000.
    On October 15, 1873, the First National Bank of New London obtained in the court of common pleas of Ashland county, a judgment against Clary & Co., composed of George W. Clary and Seymour B. Martin, for $1,025.10 and costs, and on December 12, 1873, an execution issued on the judgment was levied on the distillery property.
    . On March 6, 1874, the Norwalk National Bank obtained a judgment in the court of common pleas of Huron county, against Clary & Martin, partners as aforesaid, for $3.,503 and costs, and on the same day they caused an execution issued on the judgment to be duly levied on the same distillery property.
    Subsequently the distillery property was sold on a venditioni exponas issued on said judgment in favor of the First National Bank. After satisfying that writ, there remained in the hands of the sheriff $955.76; and the Norwalk Bank, having, on October 24, 1874, obtained another execution on its judgment, demanded that tire sheriff should apply such balance in his hands in satisfaction of such writ; but the sheriff refused to so apply such balance, on the ground that it was claimed by Sawyer as due to him on his mortgage; and thereupon, the Norwalk National Bank commenced an action in the court of common pleas of Huron county, against the sheriff and Sawyer, to compel such payment. In that court it was adjudged that the money should be paid to the bank, and Sawyer appealed to the district court. In the latter court it was adjudged that the money should be j)aid to Sawyer, and thereupon the bank filed a petition in error in this court to reverse the judgment of the district court.

      G. T. Stewart and G. L. Kerman, for plaintiff in error.

      L. D. Strutton, for defendant in error.
   Okey, O. J.

The instrument dated June 7,1878, executed by Clary to Sawyer, and containing a description of the distillery property, was in equity an indemnity mortgage to save the latter harmless from the payment of the debt of Clary, and, under the circumstances, its effect was not destroyed by the destruction of the paper on which it was written. Dukes v. Spangler, 35 Ohio St. 119; Jeffers v. Philo, 35 Ohio St. 173. Although the money received by Clary from Stentz was used in the prosecution of the partnership business, this did not make it a partnership debt. Peterson v. Roach, 32 Ohio St. 371; Merchants & T. Ins. Co. v. Richardson, 33 La. Ann. 1308; s. c., 39 Am. Rep. 290; 1 Ewell’s Lindley on Part. 269. At the time the instrument was executed, the property was in the actual possession and use of the firm of Clary & Co., in the prosecution of their distillery business, and Sawyer was then fully aware of the fact. Moreover, the property was purchased by the firm with the moneys of the partnership, to be used for partnership purposes. It was in fact partnership property, and we are.of opinion that the fair inference from the testimony, as it is disclosed in the record, is that, on June 7, 1873, when Sawyer received such mortgage, he knew that the distillery and the lot on which it was situated, were the firm property of Clary & Co. The question is, therefore, whether, under such circumstances, Sawyer acquired a lien on the undivided half of such property superior to the lien of the bank, the debt of the latter having accrued subsequently to the execution of the mortgage.

The question, in the form stated, we have no hesitancy in in answering in the negative. Such mortgage is not available until the partnership debts jiave been paid and the partnership accounts discharged. A creditor of the partnership has a clear right, by proper proceeding, to have the proceeds, of a sale of the property applied to his debt, in preference to such mortgage, and a creditor, whose debt against the partnership arose subsequently to the execution of such mortgage, has the same right to assert his lien as against such mortgage that would exist in favor of a prior creditor. Tarbell v. West, 86 N. Y. 280; Henry v. Anderson, 77 Indiana, 361; Lovejoy v. Bowers, 11 N. H. 404. And see Sumner v. Hampson, 8 Ohio, 328; s. c., 32 Am. Dec. 722; Martin v. Trumbull, Wright, 386; Rammelsberg v. Mitchell, 29 Ohio St. 52; Ludlow v. Cooper, 4 Ohio St. 1; Baird v. Baird, 1 Dev. & B. 524; s. c., 31 Am. Dec. 399; Jones on Mortg. §§119, 120; 2 Ewell’s Bindley on Part. 642, et seq. True, a' mortgagee is a purchaser (Williams v. Sprigg, 6 Ohio St. 585; Williams v. Englebrecht, 37 Ohio St. 283), and where acting bona fide is entitled to the rights of a purchaser; but notice of the fact that land apparently owned by tenants in^ common is, in reality, partnership property, defeats the protection afforded to bona fide purchasers. Whether knowledge of the mere fact that the distillery was occupied and used by the firm of Clary & Co. in their partnership business was notice to Sawyer that it was partnership property, is a question we need not decide. That it would be such notice in England is clear. Cavander v. Bulteel, 9 L. R. Ch. App. Cas. 79. And see McKinzie v. Perrill, 15 Ohio St. 162; 2 Lead. Cas. in Eq. (4th Am. ed.) 180; Mechanics’ Bank v. Godwin, 5 N. J. Eq. 334.

In view of the course taken on the trial in the district court, and in the argument of the cause in this court, the possibility that Martin authorized the mortgage to be executed, and the danger that, under the circumstances, injustice may be done to Sawyer by rendering final judgment here, we have determined to reverse the judgment, without exercising the power we have in such equity cases to render final judgment, and remand the cause for a new trial. Moreover, Martin’s representatives should be made parties. Judgment reversed.


author: Longworth, J.

text:
    The State v. Brown.
    1. A proceeding in mandamus to compel the sheriff to give notice and make proclamation to the qualified voters of a county to elect a judge of the court of common pleas therein is properly instituted upon the relation of an elector of such county.
    2. In exercising the power granted by the Constitution to provide for the election of additional common pleas judges (art. IV. § 15), the general assembly may provide for the election of a successor to any such judge ; but in the absence of words clearly indicating such purpose, no such election is authorized.
    3. The act of April 20. 1871, entitled “An act to authorize the election of an additional judge of the court of common pleas in the first subdivision of the fifth judicial district of the state of Ohio” (68 Ohio L. 68), and the act supplementary thereto, passed April 28, 1877 (74 Ohio L. 483), do not authorize the election of an additional judge of the court of common pleas to succeed the incumbent of the five years’ term of office provided for by the last-mentioned act.
    Mandamus. Reserved in tlie District Court of Clermont county.

      Swing <& Griffith, Parrott é¡ Powdney, and David Tcurbett, for plaintiff.

      Nichols, Griffith <& Dmis and Brmwmgh <& Swing, for defendant.
   Longworth, J.

This is a proceeding in mandamus, instituted upon the relation of John S. Parrott, an elector of Clermont county, against Thomas Brown, sheriff of that county, to compel him to give notice, and make proclamation according to law, to the qualified electors of said county, to vote for a judge of the court of common pleas for the first subdivision of the fifth judicial district, at the election to be held in said comity on the second Tuesday of October, a. d. 1882. The case,.,as submitted to us upon the pleadings, raises a question of law only; there are no facts to be determined. The counties of Clermont, Brown and Adams constitute the first subdivision ,of the fifth judicial district, and have always been entitled to one judge of the common pleas court, as provided by the constitution. On April 29, 1871, the general assembly passed an act (68 Ohio L. 68) providing that an additional judge of the common pleas court should be elected on the third Monday in May of that year, for this subdivision, who should “ enter upon the discharge of his duties on the first Tuesday of June, a. d. 1871, and hold his office for the term of five years.” U nder this statute a judge was regularly elected and served out his term. This act contained no words even suggesting that, at the expiration of this term of five years, another additional judge should be again elected. After its expiration, however, on April 28, a. d. 1877, the general assembly 'passed an act (74 Ohio L. 483), supplementary to the above, by which it was provided, “That the second ¿lection for the additional judge of the court of common pleas of the first subdivision, &c., shall be held on the second Tuesday in October, a. d. 1877.....And said judge, so elected and qualified, shall hold his office for the term of five years, and shall enter upon his duties on the first Monday in February thereafter.” Neither does this statute provide for any further term or election after the five years’ term created by its provisions shall have expired. Under this law Hon. Allen T. Co wen was duly elected additional judge in this subdivision, and his term of office will expire in February, 1883.

The question submitted for our consideration is whether the legislature has by these enactments created a permanent office in this subdivision, in the sense that, at the expiration of one térm of five years, another term of five years shall begin. We answer this question in the negative. Without doubt the legislature is empowered to provide for the election of an additional judge to hold this office for the term of five years (art. 1Y. § 15), and, if thought fit, to provide for successive elections after the expiration of such terms of office in perpetuity. On the other hand, the necessity for an addition to the judicial force in any district may be temporary, and only a single term of service may be desired. We are not to presume that the legislature intended to create other terms of office than those referred to in the language of -the statute, or as may be implied from that language. It seems, to our minds, that the act first mentioned intended to provide for the election of an additional judge to hold office for five years, and nothing more. The words are free from ambiguity, and do not admit of the inferences claimed. The subsequent act, which provides for a second election, does not change the meaning of the prior act. Admitting the full force of relator’s claim that legislative enactments in ggari materia may be looked into as furnishing a construction of other laws, and showing the true intent and meaning of legislation which otherwise might be obscure, yet here there is no need to resort to rules of construction to arrive at an intent which is manifest, or to remove an ambiguity which does not exist.

What has been said of the first statute applies equally to the second. It simply orders a second election, and nowhere provides for, or even refers to succeeding elections.

The former decision of this court, holding the act of May 10, 1878 (75 Ohio L. 139), unconstitutional (see 34 Ohio St. 431), probably necessitated the passage of the act of May 16, 1869 (Rev. Stat. §§ 8028-8031), the second section of which provides as follows: — “The judges now in office in said district ” (the fifth) “ shall be judges thereof, and their successors shall be elected in the subdivisions in which such judges reside.” It is argued that this statute recognizes that the additional judge in the first subdivision is to have a successor. We do not so understand it. That there wore at least three judges in that district, one of whom was in that subdivision, who were to be succeeded in office, we know, and this fact the legislature recognizes ; but it, by no means, appears from the language used that it was intended to provide successors for all the judges in that district.

it is said that this proceeding could only be jmoperly instituted upon the relation of the attorney-general, and that the relator is not a party “beneficially interested” in the sense in which that term is used in the statute (Rev. Stat. § 6744). This objection, we think, is not well taken. The relator, as a citizen of Clermont county, is interested in having the proper number of courts and judges to administer justice therein ; as an elector, lie would be entitled to vote at the election, if an election were proper, and would be himself eligible to the office.

Writ refused.


author: McIlvaine, J.

text:
    The State v. The Pioneer Live Stock Company.
    Section 3235, chapter I., title 2, of Revised Statutes, which reads : “Corporations may be formed in the manner provided in this chapter, for any purpose for which individuals may lawfully associate themselves together, except for dealing in real estate or carrying ón professional business,” must be construed as not authorizing the incorporation of insurance companies, as the organization of such companies is specially provided for in chapters X. and XI. of same title.
    QUO WARRANTO.
    The defendant claims to be a corporation organized under the laws of this state, for the purpose, as shown by the certificate of its organization, of promoting and encouraging the importation, breeding and raising of fine horses and cattle, and to protect tire owners of the same against the loss thereof by death or theft.
    The capital stock of the condpany is $5,000, divided into one hundred shares of $50 each.
    The only business actually done by the company was the insurance of its members against loss by reason of the theft or death of live stock, upon the mutual plan of insurance.
    The relator denies the right or power of the defendant to engage in the business of insurance in any form whatever, and prays for judgment of ouster, &c. The defendant demurs to the petition of relator.

      George K. Wash, Attorney-General, for plantiff.

      It. O. Fulton and George M. Eiehelberger, for defendant.
   McIlvaine, J.

The defendant claims the right to insure the owners of horses and cattle against loss by theft or death, under its articles of incorporation and by virtue of section 3231 of Revised Statutes, which provides: “ Corporations may be formed, in the manner provided in this chapter, for any purpose for which individuals may lawfully associate themselves together —except for dealing in real estate, or carrying on professional business; and if the organization is for profit it must have a capital stock*.”

Undoubtedly the broad terms of this-section would be sufficient warrant for the exercise by defendant of the franchises and privileges claimed; but, on the other hand, it is claimed that section 3235 must be construed in connection with chapters 10 and 11, title 2, of Revised Statutes, wherein, it is claimed that the whole subject of insurance by incorporated companies in this state is regulated,- and that defendant is not within the provisions or protection of either of these chapters.

We agree with the attorney-general in the opinion, that the whole subject of insurance by companies incorporated under the laws of this state is regulated by these chapters, and that no insurance company can be incorporated under the general provisions of section 3235. The special provisions made in these chapters in relation to the organization of insurance incorporations withdraws snch corporations from the general provisions in section 3235, which relate to corporations generally.

It is not claimed that defendant was organized under these chapters, and it is plain it was not. Chapter 10 relates exclusively to insurance on the lives of individuals. Chapter 11 embraces all insurance other than life.

In this chapter three classes of insurance companies are provided for: 1st. Stock. “The minimum amount of stock required is $100,000. The defendant has only $5,000. 2nd. Mutual. There is no claim that the conditions precedent to the organization of a company on the mutual plan, as emunerated in section 3634, have been complied with. 3d. mutual protection as authorized by sections 3686, 3687 and 3688. [The defendant was not organized as a mutual protection association.] The number of corporators required by these sections is not less than ten. The number who signed the defendant’s certificate was only eight.

It follows, therefore, that the defendant is wrongfully exercising the franchise of insurance, and must be ousted. The demurrer is overruled and judgment for relator.


author: MoIlvaine, J.

text:
    Simpson v. Building and Savings Association.
    An executory contract between a building association, incorporated under the act of May 9, 1868 (S. & S. 194), and one of its members in respect to shares .claimed by him in his own right and in excess of twenty shares, the maximum number which, under the statute, a member may held in his own right, is ultra vires and cannot be enforced by action.
    Error to the District Court of Highland county.
    By consent of parties, two actions, Nos. 2604 and 2606, pending in the court of common pleas of Highland county, were consolidated. In both actions the defendant in error was plaintiff. In No. 2604 plaintiff in error James P. Simpson and Isaac Simpson, E. Davies and Joseph P. Simpson were defendants, and in 2606 said James P. Simpson and Isaac Simpson and Mary Ann Simpson were defendants. The two actions were tried together in the court of common pleas, and judgment in each was rendered in favor of the defendants. Both judgments were reviewed and reversed in the district court, upon a single petition in error, prosecuted by the plaintiff in the original actions, and to reverse the judgment of reversal, this proceeding is prosecuted by the defendants in the original actions.
    The sole cause of action in the original suit No. 2604, and the first and second causes of action in No. 2606 were based on similar written undertakings, differing only in dates, amounts and makers. The following is a copy of the contract set out in the second cause of action in No. 2606 :

      “ $12,400. Greenfield, Ohio, May 6, 1873.
    “Por value received, we, James P. Simpson and Isaac Simpson, or either of us, promise to pay to the Greenfield Building and Savings Association, the sum of $12,400, with interest on $8,563.75. Principal and interest payable as follows: said James'P. Simpson, a member of said Greenfield Building and Savings Association, having received from said Association advanced loans to the amount of $12,400, the full value of sixty-two shares of stock in said Association at premiums for precedence as follows: On twenty shares $52.50 ; on one share $58 ; on twenty shares $65; on one share $68.25, and on the remaining twenty shares $68. On said sixty-two shares of stock, we, or either of us, agree to pay said Association a weekly installment of $15.50, twentydive cents per share, and on $8,563.75, the amount of said advanced loans less premium for precedence, we, or either of us, promise to pay interest as follows: $33.31 on the first day of June, 1873, and $41.24 on the first day of July, 1873, and thereafter a monthly installment of $42.82 on the first day of each month succeeding, until said loan is fully paid, and said association dissolved as provided in the constitution, rules and regulations of said association. And it is further agreed that the surrender of this note at the winding-up of said association shall be a full consideration for said sixty-two shares of stock. This note is secured by mortgage on real estate. In testimony whereof we have hereunto set our hands on the day and year first above written. . ' “ James P. Simpson.
    Isaac Simpson.”
    The contract set out in the first cause of action in No. 2606 and in No. 2604 related to advanced loans on twenty other shares (in each case), of the stock of said association owned by said James P. Simpson.
    A third cause of action in No. 2606 was on a mortgage executed by Isaac and Mary Ann Simpson to secure the performance of the contracts set out in the preceding causes of action.

      By these actions, the plaintiff sought to recover the amount due and unpaid on account of the 102 shares of stock, including monthly dues, fines, and interest on loans advanced.
    The constitution, rules and regulations of said association, referred to in said contracts, were as follows : — Article I., § 2. “ This association’s stock shall be limited to fifteen hundred shares of the par value of two hundred dollars each, of which no person shall be entitled to hold more than twenty unredeemed shares.” Article II., § 2. “Every member of this association shall pay into the treasury twenty-five cents weekly on each share of stock owned by him or her, beginning on Saturday, March 5, 1870 (with the exception of. the first meeting, when double dues must be paid), until each unredeemed share of said stock shall be worth, in cash, two hundred dollars, and there shall be funds enough in the association to pay that amount to the holders of such unredeemed shares after paying all debts of the association. The board of directors shall then proceed to pay, satisfy and discharge, first, debts and liabilities of the association, and then pay over to the owner of each unredeemed share an equal dividend of all dues on hand, and which shall afterwards be received until the whole shall be divided, and from the commencement of the payment of such dividends no further weekly dues or interest shall be payable, except that all arrears shall be fully paid up. And the association shall deliver to each mortgagor who has fully complied with the conditions of his mortgage, a discharge thereof and all papers connected therewith. After the performance of the foregoing duties, this association shall cease to exist and shall not sooner be dissolved, nor shall this article be altered, amended or repealed.” Section 3. “A member who neglects to pay his weekly dues shall be fined for every share for the first week five cents, the second week ten cents, the third week fifteen cents, fourth and each succeeding week twenty-five cents. A member neglecting to pay the interest on his advanced loan shall pay a fine of twenty-five cents on each share monthly. 'When- the fines of a share shall equal the paid weekly installments on the same it shall be forfeited by its owner.” Article XIY., Redemption of shares. § 1. “ When the funds on hand of this association are sufficient to redeem one or more shares of its stock, the funds shall be given to the stockholder who will pay the highest premium therefor. No stockholder shall be entitled to receive the redemption money who is in arrears to the association from any cause.” Section 2. “ Upon the application for redemption the money shall be set apart for the member entitled to it, and be paid to him upon his giving security, approved by the board of directors, by way of mortgage or leasehold estate, or personal security to the satisfaction of the board of directors, not exceeding six months, allowing the member reasonable time to give real or leasehold security to be at the discretion of the board of directors, conditioned that he will regularly pay the association during its continuance the weekly dues on each, of his redeemed shares of stock, and six per cent, interest payable monthly on the amount of money advanced for the redemption of such share or shares, and upon giving the further security of a transfer of an insurance policy on said premises, also that he will perform all other engagements entered into by him to this association in reference to the mortgaged premises, and upon a breach of the foregoing terms, or any of them, and, such a breach continuing for three months, the mortgaged premises may be sold at the discretion of the board of directors, and the proceeds of the sale thereof be applied — first, to pay all expenses of said sale, arrears of ground rent, taxes, &c. Secondly, to pay all moneys due this association by said delinquent by reason of said redemption, and the balance, if any, shall be paid to said delinquent, and to the extent of the shares which wore redeemed upon the security of said mortgaged property, said delinquent shall cease to be a member of this association.”
    The defense to these actions was, that all 'that was due from Janies P. Simpson in respect to twenty shares of said stock had been fully paid, and all claims of the corporation in respect to all shares in excess of twenty were invalid for want of corporate power to contract them.
    The court of common pleas found and stated the facts and the law separately, as follows

      In case No. 2606 : “ That James P. Simpson is the principal on said notes sued on by plaintiffs, and that Isaac Simpson was simply surety, receiving no benefit from the transactions. That Mary Ann Simpson simply executed the said mortgage, having no interest or benefit in the transaction, and that the fee-simple title to the real estate in the petition mentioned was, and is, in Isaac Simpson and Mary Ann Simpson, his wife, and not in James P. Simpson, and that neither Mary Ann Simpson nor Isaac Simpson are, or were, members of said association, and said mortgage was executed as collateral to secure the loans to said James P. Simpson, and the court finds that first loan to said James P. Simpson was as follows,.to wit: On the 24th dáy of August, A. d. 1872, said James P. Simpson borrowed out of said association the value of 21 shares of stock in said association at the time the said James P. Simpson, owning in said association twenty shares of unredeemed stock, and purchasing on the night of August 24,1872,21 additional shares from the association, and thereupon the said association paid to said James P. Simpson cash on said 21 shares, $3,092 less $126 bonus, being $6 per share, leaving the actual money received by James P. Simpson the sum of $2,966 ; and afterwards, December 14, 1872, the said James P. Simpson-borrowed from said association the value of 20 shares of stock, receiving therefor the sum of $2,700, the same being-original stock owned by said James P. Simpson. Next, the said James P. Simpson, on May 3, 1873, borrowed from- said association the value of 21 shares purchased by-said James P. Simpson, and transferred to him from members of said association, receiving on said loan $2,771.45, and the foregoing constituted the consideration for the $12,4003 which said Isaac-P. Simpson signed as security and secured by the-mortgage. The-next loan was for the value of twenty shares of stock purchased-by said James P. Simpson from said association, for which-he executed his note with Isaac Simpson, E. Dines and Joseph P. Simpson as securities, and which is not included in this case, but sued upon separately as No. 2604, Highland common-pleas. The amount of money received on this loan was $2,990, less $240 bonus, bonus being $12- per share, leaving-’ actual money received $2,750. The next loan was August 15, 1871, of 20 shares, the amount received being $3,004, less $400 bonus, being $20 per share, leaving the actual money received, $2,604, • for which he gave the note of $4,000, 'with Isaac Simpson as security, and the loans claimed in this case being for 82 shares. The court finds that the said James P. Simpson has paid on the whole of the 102 shares borrowed out, which includes the 20 shares in case 2604, and the' 82 shares sued on in this case, the sum of $2,530.79 interest up to June 1, 1876, inclusive, being at the rate of $72.29 per month, and has paid as dues on the whole 102 shares, in cases Nos. 2604 and 2606, to July 1, 1877, $9,868.50, being $96.75 per share, and said sums were paid without specifying the particular share or shares upon which the same were to be credited, and the same were to be credited by the plaintiff upon the whole 102 shares. The court finds, as conclusions of law, from the’ foregoing findings of facts, that, at the beginning of this suit, to wit: Case No. 2606, the 29th day of September, a. d. 1877, there was nothing due to said plaintiff on the said twenty shares of original stock held by said James P. Simpson in said association, and borrowed out, whether of dues or interest, and that said James P. Simpson has overpaid on said 20 shares $7,883.50, and that said James P. Simpson has overpaid of interest on said 20 shares the sum of $1,764.78. And the court further finds that Isaac Simpson is not bound as said surety on said notes, nor is said mortgage security a valid lien as to the excess over 20 shares in favor of said plaintiff; nor are said plaintiffs entitled to recover as against any of said defendants on the loans and excess of said 20 shares, to wit, on the 82 shares in the form of action in this case. It is, therefore, considered by the court that said defendants go hence, without day, and recover their costs taxed to $-. By consent of parties in open court, case No. 2604 (the Greenfield Building and Savings Association against James P. Simpson, Isaac Simpson, E. Dines and Joseph P. Simpson) is consolidated with this case for the purpose of saving the taking up two cases on error should either party desire it. And it is agreed that James P. Simpson was the principal in the note sued on in ease 2604, and that Isaac Simpson, E. Dines and Joseph P. Simpson are sureties, and that said note represents a loan of 20 shares, being the fourth loan from the said association to said James P. Simpson, and that nothing is recoverable thereon, in this form of action, 'against auy»tof said defendants upon the ruling heretofore made by the court in case No. 2606. And that said Isaac Simpson, E. Dines and Joseph P. Simpson are not bound by their suretyship, the said loan being in excess of the corporate power of the plaintiffs at the time said loan was made.' It is, therefore, further considered by the court that said defendants go hence, without day, and recover their costs in case No. 2604, taxed at $--. To which action of the court, in case No. 2606, in giving judgment for the defendants upon the facts found, plaintiffs, by their counsel, except, and to which action of the court, in case No. 2604, in giving judgment for the defendants upon the facts found, plaintiffs by their counsel except.”
    Upon this state of the record, the district court, on error, reversed the judgments of the court of common pleas.

      G. H. Collins, for plaintiffs in error.

      William II. Irwin and Joseph I!. Ma/rlcs, for defendant in error.
   MoIlvaine, J.

We think the judgments of the court of common pleas were right, and the district court erred in reversing them.

The second section of the act of May 9,1868 (Swan & Saylor, 194), under which the defendant in error was incorporated, provides, “Such corporation shall be authorized and empowered to levy, assess, and collect from its members such sums of money, by rates of stated dues, fines, interest on loans advanced, and premiums bid by members or depositors for the right of precedence in taking loans, as the corporation by its by-laws shall adopt.” And in the same section it is provided, “ That no person shall hold more than twenty shares in any such corporation in his own right.”

It is true, that the by-law of this association limits its stock to fifteen hundred shares of the par value of $200 each, “of which no person shall be entitled to hold more than twenty-unredeemed shares,” thereby, by implication, authorizing one person to hold more than twenty shares, provided those in excess of twenty be such as are denominated “ redeemed shares.” If such be the meaning of this by-law, it is void, in so far as it conflicts with the provision of the statute above quoted which limits the ownership of every member in his own right to twenty shares, whether they be such as the by-laws of this association denominate redeemed or unredeemed shai’es.

While it cannot be doubted that the defendant in error was empowered to levy, assess and collect stated dues from Simpson on account of each share of his stock, and make an advanced loan on his shares by way of a provision for their redemption, and to contract for and collect interest on the money advanced, and to impose reasonable fines for the violation of its rules in respect thereto, we think'it is equally clear, that the power of the corporation to make rules, and contract with its members in relation to their stock is limited to such shares as they may lawfully hold, and all contracts as well as by-laws in relation to shares in excess of that number are ultra vires and void.

The number of shares owned by Simpson in his own right and embraced in the contracts in suit is one hundred and two, eighty-two of which he' obtained from the association directly, and twenty by purchase from other members. The association assumed to redeem all these shares in advance by the payment of such sums of money, together with the premiums bid for. preference, as equalled the par value of all the shares, and took these contracts from Simpson, with sureties, to secure the payment of interest on the moneys advanced, and all stated dues and fines on account of said shares, until the final winding-up of the corporation. These contracts, therefore, in so far as they relate to eighty-two shares, the number in excess of all shares which Simpson could lawfully hold, are most clearly 'uli/ra vires and void ; and to that extent, at least, no action can be maintained to enforce them.

Upon this view of the case, the court of common pleas having found that all claims of the association in respect to the original twenty shares owned by Simpson had been fully paid, the judgment that no recovery could be had in this action and on these contracts, for any delinquency on account of the eighty-two shares held in' violation of the compauy’s charter, should have been affirmed by the district court.

The doctrine (discussed by counsel), that a corporation cannot enforce by action a special contract entered into by it in excess of its corporate powers, although fully performed on its part, as held in the leading case of the Bank of Chilicothe v. Swayne, 8 Ohio, 257, has been so repeatedly approved by this court in subsequent, cases, that we do not deem it advisable to» enter again upon its consideration. This doctrine must be regarded as settled in this state.

It has been claimed in argument that there is no limitation in its charter upon the amount of money which it may loan to a member or depositor. This proposition we have not considered, as the case before us is not upon a mere loan of money; but is based upon dealings between the corporation and one of its members in respect to stock owned by him in excess of the amount limited to a member by the statute under which the company was organized.

Judgment of the district court reversed and that of the common pleas affirmed.


text:
    Dayton v. Bartlett.
    1. The executor or administrator of a surviving partner, who dies with partnership assets in his possession and while he is engaged in settling the partnership business, is entitled to the possession of such assets, and is charged with the duty of completing such settlement unless re-relieved from that duty by contract, or by an order of a competent court.
    2. He is not, as a matter of law, precluded from receiving compensation out of the partnership funds for his services in the performance of this duty.

      Error to the Superior Court of Cincinnati.
    The plaintiff below, defendant here, brought suit for a settlement of accounts of the firm of Phillips & Jordan, and for a judgment against the defendants below for moneys claimed to have been collected by them from the assets of that firm.
    Thomas Phillips.and Richard Jordan had for many years prior to 1858 carried on business as partners. This consisted of an extensive iron business, conducting a rolling-mill, several furnaces, an iron-store and other enterprises.
    In 1858, Richard Jordan died and Thomas Phillips as surviving partner attended to closing the business of the firm until he died in 1870. The defendants below, as executors of his estate, came into possession of the partnership assets not yet settled, converted some into money, and had charge of the balance until this suit was brought.
    The case was referred to Alexander Paddack to report his findings, both of fact and law, to the court.
    The referee reported his findings of fact and law separately, and also allowed a bill of exceptions which embraced the testimony taken before him.
    The finding of facts, which present the legal question involved, is as follows:

      “ Fourth. I find that from the time Phillips & Jordan went into liquidation until 1865, the book-keeper of the firm balanced the books and rendered semi-annual statements of account to the attorney, the legal adviser and representative of the estate of Jordan, who had charge on its behalf of settlements, with Thomas Phillips, in the matters of Phillips & Jordan, to which statements no objection or exception was at any time made by the representatives or heirs of Jordan tó Thomas Phillips, in his life-time, or to the book-keeper, or to Phillips’ executors, until shortly prior to the bringing of this suit, although such representatives, personal and legal, and some of the heirs, were repeatedly at the office where the books were in charge of the bookkeeper, who rendered the statements, and where access could be had to them for examination or explanation.

      “ Fifth. I find that after the death of Thomas Phillips, in 1870, his executor succeeded him ia the possession of the remaining assets, and proceeded in liquidation and settlement of the unfinished business; that there were large and valuable bodies of real estate, and some lots belonging to the firm in Kentucky and Tennessee; many and scattered claims in favor of and against it, pending litigations, one or two partnerships that had been unfortunate and with unsettled accounts, in regard to all which the executors were unadvised and ignorant; but in order to become fully informed thereon, and be enabled to guard and secure the rights and interest of Phillips & Jordan, and effect as intelligent and favorable adjustment and settlement of all matters between them and the debtors and creditors of the estate as possible, they employed agents and assistants, and paid them out of the firm assets; that the employment of George P. Wilcox, by the executors, to examine and report upon the condition of the Clinton and Ashland furnace lands was judicious, and intended, and was for the interest of Phillips"& Jordan, and with the knowledge and consent of the Jordan heirs, who undertook to and did, in the conferences about the lands, consent for that interest.
    “ Sixth. I find.that in the sale and disposition of the lands in Kentucky, the executors of Phillips and the representatives of Jordan Avere jointly engaged, consulting and contributing, but that by consent the correspondence and regulations were wholly conducted, and the sale effected by the executors; but there was no agreement or understanding between them and the heirs of Jordan, at any .time, that compensation would be claimed or allowed for such services; nor was any claim made pending the sale, or when consummated, the proceeds being equally divided and paid over to the tAvo interests; nor until the account was rendered, about two and a half years afterwards.”
    As a conclusion of law the referee finds: “ Third. That it is the duty of each partner and the survivor as well, to settle up the affairs of the partnership after disolution without compensation ; that the admi/nist/rator of the surviving party stands im, the same position as the survivingpartner in his life-time ; that it is his duty to eolleet the partnership property, amd pay the debts of the firm, and after the surplus is ascertained and

      the interest of the partner therein settled, to distribute the same; amd therefore the executors of Thomas Phillips cannot be ah lowed compensation for such services to the estate of Phillips & Jordan, as claimed in their account.”

    It will thus be seen that the question under these findings to be decided is whether the compensation of the executors of the surviving partner for services in settling the estate of Phillips & Jordan, shall be paid from the assets of Phillips & Jordan or by the estate of Thomas Phillips. The findings show that collections were made and other services rendered for the firm of Phillips & Jordan, by the executors, for which they are entitled to recover compensation. The value of tlieir services and the amount of such compensation is not in question. The referee decided as a conclusion of law that no part of the assets of Phillips & Jordan shall be applied to the payment of the executors, and that decision was affirmed by the superior court. If tliat decision is reversed, it will become the duty of the superior court to assess the valu'e of these services.

      John W. Ilerron, for plaintiffs in error.

      A. Brower, for defendant in error.
   Johnson, J.

Are the executors of Thomas Phillips, the surviving partner, as matter of law prevented from receiving compensation for services rendered in winding up the partnership business of Phillips & Jordan, in the absence of an agreement or understanding to that effect ?

From the death of Jordan in 1858, the partnership of Phillips & Jordan was in liquidation.

Until 1870 it was under the control of Phillips as survivor. After that, aud until the commencement of this suit, his executors were engaged in settling up. They have rendered faithful and valuable services, and in every respect, so far as the referee finds, have performed the duties this trust imposed, and have, from time to time, rendered statements, to which no objection was made. During the time these services were being rendered, no claim for such services was made, nor wras there any understanding with the representatives of Jordan, on the subject.

During the time Thomas Phillips, as surviving partner, was employed in winding-up the firm business, he made no claim for services. Hence the question, whether a surviving partner is entitled to compensation for such services, is not involved. He died in 1870, leaving his own estate to be settled up, as well as the unfinished business of winding-up the affairs of Phillips & Jordan. The executors named in his will and appointed by the court to settle his estate, had, by becoming such executors, cast upon them the incidental duty of winding-up the partnership t)f which their testator was the survivor.

The surviving partner was a trustee in possession of the assets of the partnership, charged with the duty of collecting and converting them into money, paying debts, and, after a full settlement of the partnership concerns, distributing the surplus. Por his personal services in the performance of this duty, the general rule is, that he is not entitled to compensation. The executor or administrator of the survivor, in case of his death before such settlement is completed, is legally charged with the completion of this trust. Hence it is claimed that, as he stands in the same position as the survivor, he must execute the unsettled trust oh the same terms. Since the leading case of Robinson v. Pett, 3 Peere Williams, 132, it is the established rule in England, that a trustee, executor or administrator can have no allowance for compensation for his time or trouble in the execution of his trust. As stated by the lord chancellor in that case, the reason for this rule seems to be, “ for that, if allowed, the trust estate might be loaded and rendered of little value, besides the great difficulty there might be 'in settling and adjusting the quantum of such allowance, especially as one man’s time may be more valuable than that of another; and there can be no hardship in this respect upon any trustee who may choose whether he will accept the trust or not.” This rule applies not only to trustees strictly so called, but also to all who hold fiduciary relations as executors and administrators, mortgagees, receivers, guardians, and officers, directors and trustees of corporations. Perry on Trusts, § 904; 2 Lead. Oases in Eq. [238]. and notes to Robinson v. Pett. While those exercising such fiduciary relations had the inherent equitable right to be reimbursed all reasonable expenses in the execution of the trust, yet the rule at that early day seems to have been inflexible that they should have no allowance for personal services or for loss of time in performance of their duties.

This rule against allowing compensation was borrowed from the Roman law, and has been ably defended in many cases. In Manning v. Manning, 1 Johns. Ch. 534, Chancellor Kent approves the rule in decided terms, and expresses the opinion that it would have an unfavorable influence on the prudence and diligence of trustees, were we to promote, by the hopes of reward, a competition, or even a desire for the possession of private trusts that relate to the moneyed concerns of others.

This rule was equally applicable to an executor or administrator of a surviving partner ; for, as a surviving partner was a trustee, bound to serve without compensation in winding-up the firm business, so his personal representative was bound to complete the execution of this trust as a gratuitous duty. Stocken v. Dawson, 6 Beav. 371; Burden v. Bwden, 1 V. & B. 170.

The English rule, as above stated, has never been received with favor in this country. It was found that the subject of a trustee’s compensation was intimately connected with that of his liability. It was claimed, and even decided, that the gratuitous nature of his services distinguished him from a bailee for hire, and that he was only liable for very supine negligence; but the foundation of this distinction fails when the trust has been accepted on terms of receiving a stipulated reward. Exp. Cassell, 3 Watts, 443. In that case it was said that a trustee is only answerable for such gross negligence as to be evidence of willful misconduct, but that rule is not for cases in which the trustee is to receive a stipulated compensation.

In Boyd v. Hawkins, 2 Dev. Eq. 334, it was said : “ The state of our country, and habits of our people, are so different as to have induced the legislatures of nearly all the states to introduce provisions, by statute, for competent remuneration to those to whom the law commits the care and charge of the estates of infants and deceased persons.....And the equity of the statute is by construction generally extended to conventional trustees when the agreement is silent.”

The policy of the English rule was strongly condemned by Judge Story. He says (2 Story Eq. Jur. § 1268, n.): “The policy of the law ought to be such as to induce honorable men, without sacrifice of their private interest, to accept the office, and to take away the temptation to abuse the trust for mere selfish purposes, as the only indemnity for services of an imimportant and anxious character.”

Such is the view generally taken in this country, as appears in the note of American editors to the case of Robinson v. Pett, 2 Lead. Cases in Equity; see also, Barney v. Saunders, 16 How. (S. C.) 542, where the general ruléis comprehensively stated in favor of compensation for a proper execution of a trust. It is there stated that: “ In England the courts of equity adhere to the principle which has its origin in the Roman law, ‘ that a trustee shall not profit by his trust,’ and, therefore, a trustee shall have no allowance for his care and trouble. A different rule prevails generally, if not universally, in this country. Here it is considered just and reasonable that a trustee should receive a fair compensation for his services.”

In no state has the policy of allowing compensation to those to whom the law commits such trusts been more clearly marked than in Ohio. Provision is made by statute for compensation to executors, administrators and guardians of infants, lunatics and idiots. These provisions include allowances to receivers, trustees of insolvents, personal representatives of deceased guardians who have not made final settlement, and to all trustees generally of any non-resident idiot, imbecile or lunatic appointed by the probate court, or to any trustee created by will or deed, or appointed by any competent authority, to execute any trust created by deed or will. Revised Stat. § 6328, 6333 ; 70 Ohio L. 100.

It has never been the policy to treat persons holding fiduciary relations as gratuitous bailees or trustees, but as bailees for hire, and bound to the highest degree of good faith and diligence, and to the exercise of that reasonable skill which is commensurate with the character of the trust they have undertaken, and for which they are to receive a compensation.

This rule applies to the personal representatives of a surviving partner, to whom the law commits the duty of settling up the business of the partnership, as well as for settling the individual estate of the surviving partner. It is an error to say, that, as to compensation, he stands in the same relation to the unsettled partnership estate as the survivor did. Tie is the appointee of the court having jurisdiction of the settlement of the estate of the survivor.

As an incident to the settlement of that estate, he must settle the partnership estate. ILe cannot accept the former duty without having the latter imposed upon him, unless equity, for sufficient reasons, appoints a receiver or trustee to settle the partnership separately, and relieves him from this incidental trust. Unless he is relieved from this trust by agreement of the parties, or by a competent court, it is part of his official duty as representative of the survivor to wind up the partnership, and ascertain and distribute the surplus or liability of the deceased partners before he can finally settle the individual estate. In the performance of this duty he is entitled to a reasonable compensation where he has been faithful to his trust. The court below, as a court of equity, had jurisdiction to make a final settlement of this trust, ascertain the surplus, if any, and to order its distribution. In doing so, the question of compensation and its amount was properly before it upon the merits. It was not precluded, for the reasons stated by the referee, from making such allowance as was reasonable. These executors were, under the circumstances stated, entitled to a reasonable compensation out of the fund benefited.

We are not called on in this case to determine the amount of such compensation, as the only question here is, whether, as matter of law, these executors are precluded from being allowed any compensation, out of the trust fund, for their services, when they have properly'executed the trust, and have rendered important and valuable services to the common estate %

Upon the death of Jordan, the partnership property did not become that of his surviving partner burdened with the trust, but his death dissolved the partnership, and the ownership of the property was that of tenants in common, with the sole right of possession in the survivor to settle up the business. In doing so, he was a trustee of the firm. Upon his death, the law cast that duty upon his personal representative, not as owner of the property, but as a trustee in possession, acting for the estates of all the deceased partners.

If it be claimed, that the compensation for these services should be allowed out of the share of the surplus to be distributed to the estate of the survivor, or out of the general estate of the survivor. The answer to this is: 1st. There may be no such surplus, but a liability, or no individual estate; or, 2d. It is too well settled to be controverted, that a trust estate is properly burdened with all proper charges for the execution of the trust. It would be inequitable to impose this burden on one only of the beneficiaries, when all are equally benefited.

Judgment reversed, and cause remanded.


text:
    Dresback v. The State.
    1. Where on a trial for murder the question was whether poison was administered to the deceased through the negligence of a physician or intentionally by the accused, and the state in rebuttal gave in evidence the testimony of a druggist with whom the physician .was accustomed to deal, to the effect that the physician was skillful and careful in the use of medicines, the accused has the right to cross-examine the witness as to the extent and character of the dealings from which his opinion is formed.
    2. On the trial of an indictment for murder in the first degree, charging the accused with purposely killing another by administering poison, the evidence tending to show no other grade of offense, it is error to charge the jury to the effect that if they find the accused guilty their duty will be fulfilled by convicting of murder in the first or second degree, or manslaughter. And where the verdict is returned for a lower grade of homicide than murder in the first degree, a new trial should be granted, where it appears from the evidence that a verdict of acquittal might have been rendered had the jury been properly instructed.

      Error to the Court of Common Pleas of Fairfield county.
    The plaintiff in error, Joseph J. Dresback, in April, 1881, was indicted for the murder of his wife, Emily Dresback, in September, 1874, by the administration of poison. The evidence given in support of the chárge was circumstantial, and tended to show that the death of the wife was caused by strychnine. It appeared from the evidence that the day before her death the accused obtained from Doctor Turney three powders and some pills for his wife. And evidence was given tending to show that instead of the medicine thus obtained he had given his wife strychnine to be taken by her as the medicine sent by Doctor Turney. The defendant gave evidence tending to prove that the same powders and pills which he obtained from Turney he gave to his wife to be taken by her; and that if the same contained strychnine it was due to negligence of Turney in preparing the medicine.
    On the trial, at the October term, 1881, after the defendant had rested his case, the state, to rebut evidence introduced by the defendant, introduced the testimony of certain witnesses tending to show that Doctor Turney was not addicted to the use of intoxicating liquors, and was a careful and prudent physician and well skilled in the use of medicines; and among other witnesses in that behalf called John L. Krimmel, who testified, that, he had been in the drug business in Circleville for nineteen years; that Doctor Turney was a customer at his store, and that his standing was that of a good and careful physician, and that he had never known him to be under the influence of liquor, and that he had filled prescriptions for him very often.
    Thereupon the defendant by pertinent questions, on cross-examination, offered to prove by said witness, that said Turney had sent prescriptions to him at his drug-store to be filled, in the year 1874, and other years before and after, which if they had been filled as therein directed, would have killed the patient ; and that he had returned them to Turney for correction because the same contained mistakes and were improper, and that said Turney admitted said mistakes and corrected said prescriptions; to which said questions and testimony the prosecuting attorney objected, and tbe court sustained the objection. To which ruling the defendant excepted.
    The bill of exceptions embodies all the evidence, as well as the charge of the court.
    The court, among other things, charged the jury as follows: “ The state of Ohio, in order to make out its case against the defendant, must show:
    “ 1. That Emily was killed at or about the time specified in the indictment, or at least some time before the finding thereof by the grand jury.
    “ 2. That the defendant killed her.

      “ 3. That the defendant killed her purposely and maliciously.

      “ 4. By purposely administering to her, or causing her to take, poison with intent to kill her.
    “ These four elemental and material propositions must be proven and established to the satisfaction of the jury.” *-»*** -x- *
    “Now, if you are satisfied beyond all reasonable doubt that Emily Dresbaek was killed, then you have reached the first elemental and necessary conclusion in the direction of a conviction of the defendant, for if you are satisfied that she is not killed, that would be the end of your deliberations, and you would have to render a verdict of not guilty.
    “ 2. What do you say, on your oaths, as to whether the defendant killed Emily Dresbaek? and (3) whether he did it purposely and maliciously ? and (4) by administering poison, or causing it to be administered, purposely and with intent to kill ? And these three latter propositions, as well as the first, must be established affirmatively, and beyond all reasonable doubt, before the State is entitled to a verdict; and, failing in any one of them, your verdict must be for the defendant.” The court also told the jury they might find the defendant not guilty of murder in the first degree, but guilty of murder in the second degree, or of manslaughter merely.
    The conclusion of the charge was as follows:
    “If you find the defendant guilty of murder in the first degree, you will say, we, the jury, find the defendant guilty of murder in tlie first degree, as lie stands charged in the indictment.
    “ If you do not find him guilty of that degree of murder, but guilty of murder in the second degree, you will say, we, the jury, find the defendant not guilty of murder in the first degree, but we, on our oaths, find him guilty of murder in the second degree.
    “ If you find him not guilty of either of the degrees of murder, but guilty of manslaughter, then say so in your verdict.
    “ If the state wholly fails, you will say simply, not guilty.”
    The jury returned the following verdict:
    “We, the jury impanneled, sworn and charged in the above entitled cause, upon our oaths do find the defendant, Joseph J. Dresback, guilty of murder in the second degree, and not guilty of murder in the first degree as he stands charged, in the indictment.”
    A motion for a new trial having been overruled, sentence was ’ pronounced on the verdict; and the present petition in error is prosecuted to reverse the judgment.

      Brasee c& JDrmlde, Martin <& MeWeill and J. G. Beeves, for plaintiff in error.

      W. J. Gilmore and B. H. Bost/wiok, for defendant in error.
   White, J.

In the numerous assignments of error in this case there are only two that we find well founded.

The first is as to the refusal of the court to allow the cross-examination of the witness, Iirimmel, by the accused. The witness, on the part of the state, had, in effect, testified that Doctor Turney had been a customer at his drug store, that he had very often filled prescriptions for him, and that he was a good and careful physician. It was proposed, by the cross-examination, to show to the jury the value of the testimony in chief, by showing that the dealings with the doctor, to which the witness had referred in chief, did not justify the professional character for care and skill that the witness had given him. This testimony, we think, the accused had a right to introduce to the jury on the issue upon which it was intended to bear. Martin v. Elden, 32 Ohio St. 282.

The second assignment relates to the charge as to the duty of the jury with respect to the different degrees of homicide. The charge, in effect, told the jury that their duty would be fulfilled, in case .they found the accused guilty, by returning a verdict for murder in the first or second degree, or for manslaughter. The evidence against the accused tended to prove that he purposely killed his wife by administering to her poison ; and it tended to prove no other grade of offense. If the jury found him guilty, it was their duty to find him guilty of murder in the first degree ; but if the charge Avas not proved he was entitled to an acquittal. The court, however, instructed the jury that they might, consistently with their duty, find him guilty of murder in the second degree, or of manslaughter.

This instruction is sought to be justified by the ruling in Robbins v. The State, 8 Ohio St. 131.

As was said by this court, in Adams v. The State, 29 Ohio St. 415: “It was not intended by the ruling in Robbins’ case to deny that it is the right and duty of the court to instruct the jury upon all questions of law arising before them in the case, nor to relieve the jury from the duty of receiving the law as given to them by the court.” 1

“ The principle of the ruling is, that the jury must not be imperatively required to render a verdict for a particular degree of homicide; nor must the instruction be such as to deny to them the power of rendering such verdict as their judgment and conscience dictate after being fully instructed as to their duty.”

The charge in question, in Robbins’ case, was held to be an invasion of the province of the jury; while instructing them as to their duty upon a given state of fact in a case, is no such invasion.

It is claimed, that the accused was not prejudiced by the erroneous charge. We have all the evidence before us, and cannot say so. The evidence was wholly circumstantial, and we are unable to say that the jury might not have acquitted him had they been properly instructed. As to this point, see Pliemling v. The State, 46 Wis. 516, 523; The State v. Mahly, 68 Mo. 315, 318.

Judgment reversed, new trial granted, and cause remanded.


text:
    King v. King.
    1. An allowance of temporary alimony by a judge at chambers is a final order which may be reviewed on error.
    2. The allowance by a judge of the court of common pleas, as a judge of the district court, of temporary alimony, pending an appeal as to permanent alimony, is not a bar to another allowance by such judge pending such appeal; and the signature of the judge to the order, or journal entry thereof, is not essential to the validity of the order.
    3. A divorce, alimony and custody of a child having been decreed to a woman, her removal from the state and subsequent marriage, pending an appeal to the district court as to alimony, will not deprive the latter court of power to decree alimony.
    Error to the District Court of Huron county.
    On June 28, 1870, Charles King and Julia Singer were married. She was twenty years of age, and he thirty years her senior. They lived together until 1877, when they finally separated. Three children were the issue of the marriage, the youngest born in 1875. On July 17, 1878, she obtained from him a divorce, by the. decree of the court of common pleas of Huron county, Ohio, on the ground of extreme cruelty. The custody and education of the youngest child were awarded to the mother, and that of the other children to the father. As alimony the court decreed to her $2,000, besides various articles of personal property, and also decreed to her the further sum of $1,500, on condition that she would release dower in Charles King’s lands. From the decree for alimony, Charles King appealed to the district court.
    Pending the appeal, on November 2, 1878, Hon. T. P. Finefrock, one of the judges of the court of common pleas in the judicial district embracing Huron county, and ex officio one of the judges of the district court of that district, allowed Julia King, as temporary alimony, $350, and on December 28, 1878, he allowed to her, as temporary alimony, tho sum of $200. These orders were made at chambers, and entered on the journal of the district court by its clerk, but were not signed by the judge making the same, nor was the journal so signed. Charles King filed in this (the supreme) court petitions in error to reverse these orders, and stayed their execution by undertakings.
    Subsequently to the granting of the divorce, and pending the appeal, Julia King removed to Michigan, where, on April 13, 1879, she was married to Romeo King, with whom she continues to live in that state.
    In the district court, on hearing the appeal as to alimony, the marriage of Julia King and Romeo King was shown, and the fact was relied on as a bar to the allowance of aliqiony; but the court, nevertheless, awarded to her the sum of $1,000 in gross, in addition to the temporary alimony. It was shown on that hearing, that Julia King brought to her husband Charles no property, and that beside a few hundred dollars in personal estate, Charles owned during the coverture, and still had, real estate worth between ten and fifteen thousand dollars, and it did not appear that he was in debt. Whether Romeo King had money or other property does not appear from the record.

      G. T. Stewa/rt, for plaintiff in error.

      Wickham c& Wildmcm and T. R. Strong, for defendant in error.
   Okey, O. J.

A judge of the court of common pleas is ex officio a judge of the district court, and as such is empowered to grant temporary alimony pending an appeal with respect to permanent alimony. 72 Ohio L. 145, § 9; 75 Ohio L. 749, § 13; Rev. Stats. § 5701. The order thus made in such special proceeding (75 OhioL. 726; 2 Rev. Stats. 1361), is in its nature final, and may be reviewed on error. 75 Ohio L. 804, § 1; Rev. Stats. § 6707; O'Donnell v. O'Donnell, 1 Disney, 299; Brigel v. Starbuck, 34 Ohio St. 280; Carpenter v. Canal Co. 35 Ohio St. 307, 315; Foss v. Foss, 100 Ill. 576; 2 Bishop’s M. & D. § 406. While the better practice is for the judge making such order to sign it, this is not essential to its validity, where, as here, it was entered on the journal by direction of the judge as required by statute (Rev. Stats. §§ 4963, 5331; Osburn v. The State, 7 Ohio, pt. 1, p. 212); and the provisions as to signing the journal which the former .practice act contained (Sheehan v. Davis, 17 Ohio St. 571), was not carried into the code. Nor can there be any doubt as to the right to increase the temporary alimony, from time to time, as justice may require (2 Bishop’s M. & D. § 429); and this suit having been properly brought where both parties were domiciled, it is obvious the right to alimony cannot be affected by the removal of the petitioner, pendente lite, to another state. See Keerl v. Keerl, 34 Md. 21.

The remaining question is as to the effect of the marriage of Julia Ring on the orders for temporary alimony, and on the power of the district court to award permanent alimony. With respect to the orders for temporary alimony, we are unable to say, from this record, that the marriage should have any effect whatever. It does not appear, that by such marriage her condition has been so changed as to render the orders unjust or inequitable. And while the question as to the power of the district court, under such circumstances, to award permanent alimony, may not be wholly free from doubt, we are all of opinion that the power existed. A decree for alimony is not affected by the subsequent marriage of the woman to whom it is granted, in the absence of a provision in the decree that it shall have such effect, although such marriage may, in some cases, afford sufficient ground for reducing the amount. See Rev. Stats, pt. 3, tit. 1, div. 7, ch. 6; Stillman v. Stillman, 99 Ill. 196; s. c., 20 Am. L. Reg. 667, 673, note; 9 West. L. Jour. 548; Lockwood v. Krum, 34 Ohio St. 1; 2 Bishop’s M. & D. § 429. Here, alimony was awarded in the common pleas, and although the decree was in form vacated by the appeal, the object sought by the appellant was not to escape from the payment of any alimony, but simply to obtain a review and reduction as to the amount. In determining the amount, the change effected by the marriage of the petitioner was evidently considered, and properly considered, by the district court,' and hence the amount awarded in the common pleas was materially reduced. Moreover, while designated as alimony, the sum was awarded, not strictly as alimony (2 Bishop’s M. & D. § 553), but doubtless with a view to the support of the appellant’s own child. Whether the amounts of the temporary and-permanent alimony were too great or too small, we are unable to determine from the record. We deal simply with questions of power in deciding this case, and do not find there has been such abuse of authority as to call for a reversal of either of the judgments.

Judgments affirmed


author: By the Court.

text:
    Cow Run Iron Tank Co. v. Lehmer.
    Motion to dismiss cause No. 1203 on the general docket for want of printed record.

      E. A. Guthrie and W. B. Loomis, for the motion.

      Silty, Ewart aud Sands, contra.
   By the Court.

The provision of the Revised Statutes, § 6711, as to the time within which records must be printed, has no application to cases reserved from the district court.

Motion overruled.


text:
    Bartlow v. Kinnard.
    Motion to dismiss proceeding in error.
    On April 21, 1877, George W. Kinnard, defendant in-error, recovered a judgment in the district court of Butler county, against George G. Kinnard, directing the conveyance of real estate. George G. Kinnard, against whom this judgment was rendered, died April 8, 1878.
    On December 30, 1880, the plaintiffs in error, heirs at law of George G. Kinnard, deceased, commenced this proceeding in error, alleging that at the date of the death of their ancestor, and ever since, they have been married women.
    The ground of this motion is, that more than three years elapsed between the date of the judgment sought to be reversed and the filing of the petition in error.
    The question in the case -is, does the disability of the plaintiffs in error, under section 6723 of the Revised Statutes, save the right to prosecute this petition ?

      J. O. McKermy, for the motion.

      Thomas Millihin, contra.
   By the Court.

The right is barred. The time of the statute, having commenced to run during the liftime of the the ancestor, did not stop at his death. 1 Ohio St. 478.

Action dismissed.


text:
    Brown v. The State.
    Error to the District Court of Ashtabula county.

      Leona/rd, Cushing & Buggies, for plaintiff in error.

      George K. Nash, Attorney General, for defendant in error.
   By the Court.

A male teacher, who has sexual intercourse with a female under his instruction, with her consent, at her father’s house, after school hours of one day, and before the school hours of the succeeding day, during the term -of his engagement as her instructor, is liable to punishment under section 7024 of the Revised Statutes.

Judgment affirmed.