author: Spear, J.

text:
    The State of Ohio v. Hensley.

      Exclusion of public from court room — Because of obscene testimony — Is denial to defendant of constitutional right — Indictment for rape under two different counts; — Error for court to charge — Jury may find general verdict, when — Court procedure — Criminal law.

      1. An order made by the court of common pleas during the trial of an indictment for a felony, to the effect that in view of the testimony expected to be given by witnesses next to be called the court would continue the trial during the taking of the testimony of witnesses likely to give immoral or obscene testimony in the small court room, that the sheriff should admit no one to said room except the jury, defendant’s counsel, and members of the bar and newspaper men, and one other person, a witness for defendant, exceeds the power of the court in the premises, and its enforcement is a denial to defendant of his constitutional right to a public trial.

      2. Where, upon the trial of a person over eighteen years of age charged with rape upon the person of a female under the age of sixteen years, the indictment, in the first count, charges the offense to have been committed with the consent of the female, and in a second count forcibly and against her will, it is not error for the court to overrule a motion by defendant made at the conclusion of the state’s evidence in chief to require the state to elect upon which count of the indictment it will rely for a conviction.
    3. In such case it is error for the court to charge the jury that they may find a general verdict of guilty upon both counts of the indictment if they should find the evidence to be of such character as to warrant a conviction upon either count.
    (No. 9796
    Decided November 20, 1906.)
    Error to the Circuit Court of Washington county.
    At the April term, 1905, of the court of common pleas of Washington county, the defendant in error, Elisha Hensley, was tried and convicted of the crime of unlawfully having intercourse with one L. H., a female person under the age of sixteen years, and was sentenced to the Ohio penitentiary for a term of two and one-half years. At the October term, 1905, of the circuit court of that county, the verdict, sentence and judgment were set aside and the cause remanded to the common pleas for a new trial. The state brings error.

      Mr. William H. Sheldon, prosecuting attorney, and Mr. Charles R. Richardson, for plaintiff in error.
    The right of the court to limit the attendance (and that was all that was done here) has been recognized by the very best authorities. Thomp son on Trials, Section 216; Cooley’s Constitutional Limitations (6th Ed.), Section 379; 1 Bishop’s Criminal Procedure (4th Ed.), Section 958; People v. Murray, 28 Am. St. Rep., 308; Grimmett v. State, 58 Am. St. Rep., 630.
    1. When there is no room for him in the court house.
    2. When he is disorderly.
    3. When he is. a witness.
    4. When decency or morality demand it.
    The exclusion of a portion of the public from the court room under certain circumstances is not a violation of the constitutional rights of the accused. Ohio' Law Reporter, Aug. 21, 1905, on page 315; United States v. Buck, Fed., 1289; People v. Swafford, 65 Cal., 223; 3 Pac. Rep., 809; People v. Kerrigan, 73 Cal., 222; 14 Pac. Rep., 849; Stone v. People, 3 Ill. (2 Scam.), 326; State v. Brooks, 92 Mo., 542; 5 S. W. Rep., 257;
      Grimmett v. State, 22 Tex. App., 36; 2 S. W. Rep., 631; 58 Am. St. Rep., 630; Century Digest, Vol. 14, Columns 2204-2205, Section 1452; People v. Sprague, 53 Cal., 491; Cooley’s Const. Lim., 4th Ed., 383; Black’s Const. Law, 504; Abbot’s Trial Brief (crim. causes), 160-162; 1 Bishop’s Crim. Proc., Section 959.
    Where the evidence is of a peculiarly indecent and vulgar character the court may, in the interest of public morality and decency, exclude from the court room all persons except, the jurors, and others connected with the case. People v. Hall, 51 N. Y. App., 57; Grimmett v. State, 2 S. W. Rep., 631; 22 Tex. App., 36; 58 Am. St. Rep., 630; In re Shortridge, 99 Cal., 526; 34 Pac. Rep., 227; 37 Am. St., 78; Cooley’s Const. Lim. (4th Ed.), 383; 1 Bishop’s Crim. Proc., Section 959.
    The right to public trial has its basis in the ancient usages and principles of the common law, and while it is of. paramount importance that it shall be secured in its fullest enjoyment to the accused, the publicity of the proceedings should be subordinated to the orderly and proper way in which they are to be conducted. United States v. Buck, 24 Fed., 1289; State v. Brooks, 92 Mo., 542; 5 S. W. Rep., 257; 1 Bish. Crim. Proc., Section 959; Cooley’s Const. Lim. (4th Ed.), 383.
    The bar, the great guardian of our civil rights, and the press, the tocsin that sounds alarm at any innovation of those rights, were present without restriction. Smith Grimes, the only person whose presence was requested by defendant, was excepted from the order (made at defendant’s request) excluding the witnesses, and was present in court the entire time.

      Did the court err in not compelling the state to elect upon which of the counts contained in the indictment it would base its claim for a conviction ?
    The indictment, which is in two counts, charges but one act of sexual intercourse by a male person more than eighteen years of age, with a girl under sixteen years of age, and charges the same as having been committed in different ways. This is consistent with practice and law. State v. Carl, 71 Ohio St., 259; Whiting v. State, 48 Ohio St., 221; State v. Bailey, 50 Ohio St., 640; Beasley v. People, 89 Ill., 571; Commonwealth v. Andrews et al., 132 Mass., 263; State v. Smith, 24 W. Va., 814; State v. Flye, 26 Me., 312.
    In the case under consideration the two counts of the indictment grew out of the same transaction, and upon whichever of the two counts the prosecution should proceed, evidence of the entire transaction would be admissible, and, even if not such as to sustain a general verdict, the state should not be compelled to elect, as it was a matter of fact for the jury to determine from the evidence whether the defendant committed the act with the consent of the girl or against her will. Bailey v. State, 4 Ohio St., 440; Jackson v. State, 39 Ohio St., 37; Hotelling v. State, 3 C. C. R., 630.
    Where two closely allied offenses arise from the same transaction, and may be established by substantially the same evidence, both may be included in separate counts of the same indictment. State v. Bailey, 50 Ohio St., 636; Bailey v. State, 4 Ohio St., 440; Stoughton et al. v. State, 2 Ohio St., 563; Robbins v. State, 8 Ohio St., 131; Kerr v. State,
      36 Ohio St., 614; Eldredge v. State, 37 Ohio St., 191; Bishop’s New Crim. Procedure, Section 1015; Sections 7226 and 7227, Revised Statutes.
    Distinct felonies may be joined where they are the same transaction charged in different ways. Bishop’s New Crim. Procedure, Vol. I, Section 449.
    And the rule may perhaps be extended to disconnected felonies. Eldredge v. State, 37 Ohio St., 191; Bishop’s New Crim. Proc., Vol. I, Section 1015a, citing a large number of decisions.
    The question of compelling the state to elect upon which one of several counts in an indictment it will proceed to try the defendant, is one left to the discretion of the trial court, and ordinarily not reviewable. State v. Bailey, 50 Ohio St., 640; Bailey v. State, 4 Ohio St., 440; Bish. Cr. Proc., 454; Commonwealth v. Sullivan, 104 Mass., 552; Searles v. State, 6 C. C. R., 331; 3 O. C. D., 478.
    The state will not be compelled to elect until the evidence is heard or until the court is satisfied distinct and disconnected offenses are charged and that they may distract the attention of the jury. Hughes Cr. Proc., Sections 2784 and 2883; Hughes Cr. Proc., Section 479; Whiting v. State, 48 Ohio St., 221; Myers v. State, 4 C. C. R., 570; Cottell v. State, 12 C. C. R., 467.
    The two counts are identical with each other, and the one might be treated as surplusage. Bishop’s New Cr. Proc., Vol. I, Section 1015.
    Proof of the first of these counts would be sufficient to sustain a verdict of guilty on the second count, had the indictment been drawn with only one .count, and that the second count, and vice versa. Bishop’s New Cr. Proc., Vol. I, Sections 1013, 1014, 1015, 1015a, also Sections 1325-1327; State v. Carl, 71 Ohio St., 259; Mitchell v. State, 42 Ohio St., 386; Ducher v. State, 18 Ohio, 308; Turner v. State, 1 Ohio St., 422.
    A general verdict upon several counts charging the same act as having been committed in several ways will be sustained. Stoughton et al. v. State, 2 Ohio St., 563; Bailey v. State, 4 Ohio St., 440; Barton v. State, 18 Ohio, 221; Eldredge v. State, 37 Ohio St., 191; Boose v. State, 10 Ohio St., 575; Bishop’s New Cr. Proc., Vol. I, Sections 1005, 1015, 1015a.

      Mr. W. E. Sykes, for defendant in error, cited and commented upon the following authorities:

      People v. Swafford, 65 Cal., 225; 3 Pac. Rep., 809; People v. Hartman, 103 Cal., 242; 37 Pac. Rep., 153; 42 Am. St. Rep., 108; People v. Murray, 89 Mich., 276; 50 N. W. Rep., 995; 28 Am. St. Rep., 294; Kirk v. State, 14 Ohio, 513; State v. Carl, 71 Ohio St., 259.
   Spear, J.

The indictment contained two counts. The first charged that on the nth day of March, 1905, the defendant, a male person of the age of eighteen years and upward, did unlawfully and knowingly, carnally know and abuse one L. H., with her consent, she, the said L. H., then and there being a female person under the age of sixteen years, to-wit, of the age of fourteen years. And by the second count it was charged that 013 the same date the defendant in and upon one L. H. unlawfully and violently did make an assault, and her, the. said L. PI., then and there, did unlawfully, forcibly, and-against her will, - unlawfully ravish and carnally know, she the said L. H., then and there being a female person, other than the daughter or sister of the defendant, and being a female person under the age of sixteen years, to-wit, of the age of fourteen years.

Three assignments of error are found by the circuit court as grounds for the judgment of reversal, viz.: 1. The trial court did not grant defendant a public trial as guaranteed by the constitution. 2. The trial court erred in overruling the motion of defendant to' compel the state to elect upon which count in the indictment it would base its claim for a conviction. 3. The court erred in charging the jury that they might find a general verdict of guilty upon both counts if they should find the evidence to warrant a conviction upon either count.

1. Facts bearing upon the first point are: The trial was entered upon in the large general court room in the court house. At the instance of counsel for defendant the witnesses for the state were ordered excluded from the room until called, and on like motion by the state all witnesses for defendant were also similarly excluded except one Grimes, a witness for defendant, whose presence was desired by defendant’s counsel. After the examination of the first witness, on the reassembling of court after the noon adjournment, the first day of the trial, the court announced that in view of the testimony expected to be given by the next witness he would continue the trial during the taking of the testimony of witnesses likely to give immoral or obscene testimony in the small court room, the probate court room, and directed the sheriff to admit no one to said room except the jury, defendant’s counsel, members of the bar, newspaper men, and Grimes, defendant’s witness. The order was made in open court in the presence and hearing of defendant and his counsel. No objection was made other than the statement by one of defendant’s counsel that the defense knew of no testimony that would be improper to be heard in a public trial. Thereupon the trial was transferred to the small room, and the judge, the jury, defendant, his counsel, a number of the bar and newspaper men, and the witness Grimes, went to the small room, where the court was opened and by order of the court the general public was excluded during the taking of the testimony by the state in chief, and in reply or rebuttal, save as to one witness, a physician.-

The right of a person accused of crime to a public trial is guaranteed by the constitution, article I, section 10, the provision being that: “In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” The term “public,” in its enlarged sense, takes in the entire community, the whole body politic, and a public trial means one which is not limited or restricted to any particular class of the community, but is open to the free observation of all. This does not impose upon the authorities a duty to provide so large a place for public trials as would accommodate every member of the community at the same time, for that would be plainly impracticable, but it does import a duty to make reasonable provision in that regard, and this requirement is usually met by ample accommodations for. the purpose. And these considerations suggest the duty of courts, when trying persons accused of crime, to avail themselves of the means thus furnished, but suggest further that the entire public may not be present at such trial. Provisions respecting a public trial similar to that of our constitution above quoted are found in the Federal constitution and in most, if not all, of the constitutions of the states of the Union, and a number of decisions have been rendered by courts of last resort involving the question, although it seems not to have been a frequent subject of judicial decision. Text-writers have also written upon it. The necessity for such provisions arose from the flagrant abuses which disgraced some of the courts of England prior to our American Revolution, and their purpose manifestly is to protect the rights of persons accused of crime. No universal rule, however, has been established which is sure, to apply to all situations. Probably the rule given by Cooley, in his work on Constitutional Limitations, 6th Ed., 379, is as safe a guide as any met with in the' books. It is: “It is also requisite that the trial be public. By this is not meant that every person who sees fit shall in all cases be permitted to attend criminal trials; because there are many cases where, from the character of the charge and the nature of the evidence by which it is to be supported, the motives to attend the trial on the part of portions of the community would be of t'he worst character, and where a regard to public morals and public decency would require that at least the young be excluded from hearing and witnessing the evidences of human depravity which the trial must necessarily ’ bring to light. The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and. that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance 'of their functions; and the requirement is fairly observed if, without partiality or favoritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether.”

Assuming that the rule above indicated governs the case, it is manifest that the order of exclusion made by the trial judge was in excess of the power of the court in the premises. It permitted the admission of a very limited class of the public and excluded all others. Without doubt the object which was sought to be attained was in all respects, save the one above indicated, highly commendable. The nature of the charge and the opening statements of counsel indicated that revelations from the witness-stand would be indecent in a marked degree, and the sequel, as shown by the record, fully bore out the unpleasant anticipations of the judge. No possible good to the community could result by giving publicity 'to such vile and filthy details, but much probable harm, and especially would this result follow if the testimony were listened to by young people. Had the court continued its sessions in the general court room, and had the order excluded all youths, and allowed free entrance to the court room by others, probably no valid exception to the order could have been taken. It is not intended here to indicate that the trial judge is without power to exclude from the court room during the trial of a criminal case individuals, though adults, who are, by reason of habits or physical condition, personally obnoxious, or persons who by their conduct interrupt the orderly course of business, or the power to clear the room of general spectators who, as in Grimmett v. The State, 22 Texas App., 36, were so boisterous and insubordinate as to intimidate. witnesses, and where it was impossible to distinguish those who participated from those who did not; nor is it doubted that persons whose attendance is for the express and only purpose of using the information thus obtained in a way calculated to directly obstruct the administration of justice may be excluded. Perhaps, too, the character known as the “court room loafer,” whose attendance would be induced only by prurient curiosity, might be excluded without harm to the defendant, or prejudice to the state, although the matter of determining with certainty just who should, and who should not, be included in this category in the given instance, might not always be easy of solution. Much should be, and we think is, necessarily and properly left to the trial judge, who is obliged to insist upon the orderly conduct of the public business, and whose highest duty is the securing to the parties, the defendant as well as.the state, a fair and impartial trial; but the people have the right to know what is being done in their courts, and free observation and the utmost freedom of discussion of the proceedings of public tribunals that is consistent with truth and decency tends to the public welfare. We agree with the holding of the circuit court in the case at bar that the order of exclusion was too general in character and its limitations of admission too-restrictive, and that the defendant was not accorded such a public trial as is guaranteed by the constitution.

It is, however, insisted by counsel for the staté that because no specific objection or exception was entered by the defendant at the time the order was made or was being enforced, the error, if any was committed, can not now be taken advantage of. This objection ignores the force and effect of the constitutional provision. The right to a public trial is guaranteed. It is of the same high order of right as the other guarantees embodied in the section; that to appear and defend in person and with counsel; that to meet the witnesses face to face and have compulsory process, and that to a trial by jury. The right cannot be waived by silence any more than can the right to be tried by jury where the accusation is a felony and the plea-is not guilty. This right should not be confused with a claim sometimes made that a reversal should be ordered where a jury has been obtained in a way not strictly conforming to the statute. The manner of selecting the jury is matter of procedure only, and this court has often held that objection to the mode must be made at the time, but that an impartial jury must be obtained, and if that result is reached the accused is not harmed.

2. At. the conclusion of the state’s testimony in chief the defendant moved the court to require the state to elect upon which count of the indictment it would rely for conviction, and also to elect upon what occurrence, or the date of the transaction in regard to which testimony had been given, it would rely. The first part of the motion was overruled by'the court, and the second sustained. The state thereupon elected to rely upon a date stated, and the cause proceeded upon both counts of the indictment, thus leaving it to the jury to determine, in the event the state had made a case against the defendant, upon which count he was guilty. The overruling of the first part of defendant’s motion was found by the learned circuit court to be erroneous. In this conclusion we do not agree with that court. The' rule respecting criminal pleadings in Ohio permits the joining of two or more counts where the offenses charged are closely related and arise from one transaction. Both characteristics were apparent in this case. This form of pleading may be necessary in order to provide for every possible variation in the evidence, and is common practice. And if such a form of indictment may be permitted it would follow that the jury should pass upon the question of which grade of the offense charged, if either, the defendant had been proven guilty. Authorities to sustain this proposition are abundant. We cite only Bailey v. The State, 4 Ohio St., 440, and The State v. Bailey, 50 Ohio St., 636.

3. The court charged the jury that they might find a general verdict of guilty upon both counts if they should find the evidence to be of such character as to warrant a conviction upon either. Thereupon the jury returned a general verdict of guilty. This charge was based upon the theory that the indictment in fact charges but one crime, and whether the offense was committed with consent or against the will of the female was immaterial. It is true that the crime is denominated rape whether committed forcibly or by consent. Considering the sections under which this indictment was found, it is manifest that the object sought is the protection of young girls, and the precise thing intended to be discouraged, and punished if committed, is sexual intercourse between males of eighteen years and upwards with females of less than sixteen, years. In this aspect the question of force or consent is immaterial. But that is not all of it. The statute (section 6817, Revised Statutes) provides in the one case punishment by incarceration in the penitentiary not more than twenty nor less than three years, and in the other like imprisonment not more than twenty years nor less than one year, or six months in the county jail or workhouse. This difference as to punishment distinguishes the two grades of the offense; it expresses the legislative judgment that the same act done by force is of a more heinous character than if done with consent, as manifestly it is, and so deserving of severer punishment. It would seem, also, to follow that the defendant was entitled to know by the verdict of a jury of what exact grade of crime he had been convicted. It would follow further that the jury should, as- a guide to the court in awarding punishment, determine and fix by the verdict the grade of crime which the testimony-showed the defendant had committed. The charge should have directed that if found guilty on either count a verdict of guilty upon that count and not guilty upon the other should have been returned. It was not possible that the defendant could have been guilty on both. It was held by this court in The State v. Carl, 71 Ohio St., 259, that upon the trial of an indictment charging the commission by the defendant Carl of a like act with consent, evidence tending to show that it was committed without consent was not a fatal variance. This holding is based upon the peculiar wording of the statute, which, as above indicated, carries the implication that the manifest intent of the legislature was to declare that the offense covered by the statute is established by proof that the act was either with consent or without. It is insisted that the above case requires a conclusion different from the one above stated as to this phase of the case at bar. We think not. The court’s charge, we think, was erroneous. Inasmuch, however, as the sentence was of the minimum character, it may be that no essential prejudice to the defendant resulted, and were there no other error the judgment of the common pleas might be affirmed.

Judgment of the circuit court reversing the judgment of the court of common pleas is affirmed.

Shauck, C. J., Price, Crew and Summers, JJ., concur. Davis, J., concurs in the judgment on the ground stated in paragraph three of the syllabus.


source: Caselaw Access Project

author: Summers, J.

license: Public Domain

text:
    The Cockley Milling Company v. Bunn, Admx.

      Action by corporation — Against executor or administrator — Adverse parties — Corporation manager not disqualified to testify, when — Section 5242, Revised Statutes. ■

    111 an action by a corporation against an executor or administrator, the general manager of the corporation is not, by Section 5242, Revised Statutes, which provides that a party shall not testify where the adverse party is an executor or administrator excepting' to facts that occurred subsequently to the death of the decedent, disqualified to testify to facts occurring before the death of such decedent.
    (No. 9626
    Decided, November 20, 1906.)
    Error to the Circuit Court of Knox County.
    The case is stated in the opinion. ■

      Messrs. Laser, Huston & Marquis, for plaintiff in error, cited and commented upon the following authorities:

      Cincinnati, etc., Ry. Co. v. Citizens National Bank, 56 Ohio St., 378; Beach on Private Corporations, par. 315; Angelí & Ames on Corporations, par. 280; Morawetz on Private Corporations, par. 572; Mechem on Agency, par. 44; Rochester v. Shaw, 100 Ind., 268; Sullivan v. Grass Valley Quartz Milling & Mining Co., 77 Cal., 418; Protection Life Insurance Co. v. Foote, 79 Ill., 361; Hurlbut v. Marshall, 62 Wis., 590; St. Andrews Bay Land Co. v. Mitchell, 54 Am. Dec., 340; Lyman v. White River Bridge Co., 16 Am. Dec., 705; Johnson v. Kimbro, 75 Am. Dec., 780; Shaub v. Smith et al., 50 Ohio St., 648; Cody v. First National Bank, 30 S. E. Rep., 281; Am. Digest, 1898, p. 6592, par. 37-b; Holston v. Southern Railway Co., 116 Ga., 656; 43. S. E. Rep., 29; Am. Digest, 1903, p. 4411, par. 31-a; Colonial & United States Mortgage Co. et al. v. Thedford et al., 21 Tex. Civ. App., 254; 51 S. W. Rep., 263; Am. Digest, 1899, p. 4627, par. 33-h; Bank of Southwestern Ga. v. McGarrah et al., Exrs., 120 Ga., 944; 48 S. E. Rep.. 393; Am. Digest, 1904, p. 4687, par. 29-a; City Savings Bank v. Enos, Admr., 135 Cal., 167; Parrish v. Williams, 79 S. W. Rep., 1097; Am. & Eng. Ency. Law, Vol. 30, 992; Flach v. Gottschalk Co., 88 Md., 368; In re Will of Bruendl, 102 Wis., 45; Twohy Mercantile Co. v. Estate of McDonald et al., 108 Wis., 21; Ullman v. Brunswick Title Guarantee & Loan Co., 96 Ga., 625;. Downes, Exr., v. Maryland & Delaware R. R. Co., 37 Md., 100; Rust et al., Exrs., v. Bennett et al., 39 Mich., 521; Mitchell, Admr., v. Tishomingo Savings Institution, 56 Miss., 444; Kohl v. State, 59 N. J. L., 196; Middletown Savings Bank v. Bates, 11 Conn., 519; Pack v. Mayor of New York City, 3 N. Y., 491; Grange Warehouse Assn. v. Owen, 86 Tenn., 356; Swortfiguer v. White et al., 141 Cal., 567; Am. & Eng. Ency. Law, Vol. 27, 1091; Bank of Montreal v. Waite et al., 105 Ill. App., 735; Dannemiller & Sons v. Leonard & Son, 15 O. C. C. R., 686; Section 5242, Revised Statutes.

      Mr. F. 0. Levering, for defendant in error, cited and commented upon the following authorities :

      Mowry v. Kirk & Cheever, 19 Ohio St., 375; Raudabaugh v. Hart, 61 Ohio St., 73; Roberts v. Remy et al., 56 Ohio St., 249; Beaston, Guarnishee, v. Farmers’ Bank, 37 U. S., 102; United States v. Amedy, 24 U. S., 392; 29 Am. & Eng. Ency. Law (1st Ed.), 538, 539, 540; Field v. New York Central R. R. Co., 29 Barb., 176; Wright v. New York Central R. R. Co., 28 Barb., 80; Johnson v. McIntosh, 31 Barb., 267; La Farge v. Exchange Fire Insurance Co., 22 N. Y., 352; Crafford et al. v. Board of Supervisors, 10 L. R. A., 129; Section 5242, Revised Statutes.
   Summers, J.

The Milling Company, a corporation, contracted with the defendant’s decedent for four cars of oats, three to be delivered in the month of July and one in the month of August, 1901. But one car was delivered. The Milling Company sued for and recovered the difference between the selling price and the market price at the time for delivery. The contract was made by conversation, by telephone, between the general manager, who was also the secretary and treasurer, of the Milling Company and the defendant’s decedent. The court of common pleas overruled an objection to the competency of the general manager to testify as to the conversation and' he so testified. The circuit court reversed on the ground that in this ruling the trial court erred.

At common law for nearly two hundred years an interested person was disqualified to testify in his own behalf. The reason for the disqualification was the assumption that under such circumstances most persons would testify falsely, and, as there was no certain test whereby the jury might discover the truth, that it was expedient to exclude all such witnesses.

The fallacy of this assumption was pointed out by Bentham and others, and on August 22, 1843, by an act entitled: “An act for improving the law of evidence” (6th & 7th Viet. c. 85), since known as Lord Denman’s Act, the disqualification was removed in England, and since then in the federal courts by act of Congress and by statute in each of the states in this country. In 1851 the disqualification of parties was removed in England by the adoption of Lord Brougham’s Bill (14 & 15 Viet., c. 99), and shortly thereafter similar acts were passed in this country. But in the act of Congress and in the statute of nearly every state, either in the statute abolishing the disqualification or in one shortly thereafter enacted, an exception was made so that a party is excluded from testifying, where the adverse party is an executor or administrator, as to facts transpiring before the death of his decedent.

The reason for the exceptions is thus stated by Gholson, J., in Stevens et al. v. Hartley, 13 Ohio St., 525, 531: “Section 313 of the code is in the nature of a statute against- frauds and perjuries. The testimony of the party to the action, though generally admissible, is excluded when it relates to transactions between him and a deceased person, against whose estate he asserts a claim. It was considered that there would be a temptation in such a case to fraud and perjury, against which protection should be given by excluding the testimony.” See also Louis’s Admr. v. Easton, 50 Ala., 471; Owens v. Owens’s Admr., 14 W. Va., 88, 95.

That the exceptions are equally indefensible with the original rule is pointed out by Professor Wigmore in his learned work, Wigmore on Evidence, Section 578, where the whole matter is treated, and he well says of these exceptions: “As a matter of policy, this survival of a part of the now discarded interest-qualification. is deplorable in every respect; for it is based on a fallacious and exploded principle, it leads to as much or more false decision than it prevents, and it encumbers the profession with a profuse mass of barren quibbles over the interpretation of mere words.”

In St. John v. Lofland, 5 N. D., 140, Corliss, J., says: “Statutes which exclude testimony on this ground are of doubtful expediency. There are more honest claims defeated by them, by destroying the evidence to prove such claim, than there would be fictitious claims established if all such enactments were swept away and all persons rendered competent witnesses.”

In this state the substance of Lord Denman’s Act was enacted in 1850 (48 Ohio Laws, 33). Section 3 is as follows: “No person offered as a witness shall be excluded by reason of his or her interest in the event of the action; but this section shall not apply to a party to the action, nor to any party for whose immediate benefit such action is prosecuted or defended, nor to any assignee of a thing in action, assigned for the purpose of making him a witness.”

This section was under consideration in Lawson & Covode v. The Farmers’ Bank of Salem, 1 Ohio St., 206. In that case two stockholders, also directors, in the plaintiff corporation were permitted to testify against the objection of the defendant. It was ruled that they were not parties within the meaning of’ the statute. In the opinion it is said that the disqualification because of their interest was removed by the statute, and that being stockholders ‘and directors did not make them parties, that they were not named as parties upon the record and that they were not within the exception of “any party for whose immediate benefit such action is prosecuted or defended.”

Prior to the legislation removing the disqualifications of parties to testify, the officers and stockholders, not named as parties in the record, in a corporation, a party, were not disqualified as parties, but only as being interested, and it remains to ascertain whether the general assembly in its efforts to remove the disqualifications of parties has disqualified persons' who were theretofore competent.

Following Lord Brougham’s Act the disqualifications of parties in this state were partially removed by our civil code of 1853 (51 Ohio Laws, 57).

Section 310 provided, that in any . civil action no person shall be disqualified as a witness by reason of his interest in the same, as a party or otherwise. And Section 313 reads: “No party shall be allowed to testify by virtue of the provisions of Section 310, where the adverse party is the executor, or administrator, of a deceased person, when the facts to be proved transpired before the death of such deceased person.”

The provisions of the code recognize both parties and persons having an interest, so that it is not permissible to conclude that officers and stockholders in a corporation, because interested, were intended to be comprised in the word party. Potter v. National Bank, 102 U. S., 163.

Since 1853 numerous amendments have been made of these provisions of the code, adding disqualifications of a party, but there has been no disqualification of the officers or stockholders in a corporation. In Elliott v. Shaw, 32 Ohio St., 431, 434, Day, J., says: “Instead of providing, in general terms, that where one party to a transaction or matter in issue, is unable, for any cause, to testify, the other shall also remain silent, the ,common law disqualification of a party from testifying, removed by Section 310, has been restored by Section 313 only by successive enactments, cautiously confined, in each instance, to a particularly specified circumstance.”

These various disqualifying provisions were treated as exceptions to the statute removing the disqualification and consequently were strictly-construed. In 1880 these provisions of the code appear as Sections 5240,' 5241, 5242, Revised Statutes, and it was provided in Section 5242 that, “when a case is plainly within the law and spirit of the last three sections, though not within the strict letter, their principles shall be applied.” It will be observed that the law is not that the exceptions are to be multiplied by judicial construction, but that the principles of the three sections shall be applied when a case, not within the letter, is plainly within their reason and spirit. Accordingly in Cochran v. Almack, 39 Ohio St., 314, it was ruled that: “A defendant is a competent witness to transactions with. a deceased agent of plaintiff.” Johnson, C. J., says (316) : “It follows, that if a case is provided for, by the terms of either of the sections, no occasion can arise for invoking the spirit and reason of the statute to supply the omission of its letter or terms.”

To the same effect is what he says in Sternberger v. Hanna, 42 Ohio St., 305, 309. These cases are followed in First National Bank v. Cornell, 41 Ohio St., 401; Keyes v. Gore, 42 Ohio St., 211; Shaub v. Smith et al., 50 Ohio St., 648.

But it is contended that as a corporation can act only by an agent, the exception can have ■ no application to a corporation unless the agent who acts for it is excluded. This may be true, but in view of the fact that a number of exceptions have from time to time been added to the statute and, in view of the fact that in some states the agents of corporations are in such cases expressly excluded, the contention tends to establish only a causus improvisáis which is no warrant for judicial legislation.

The following cases support the conclusion: New Jersey Trust & Safe Deposit Co., Exr., v. The Camden Safe Deposit & Trust Co., 58 N. J. L., 196; Grange Warehouse Assn. v. Owen, 86 Tenn., 355; Colonial & U. S. Mortg. Co., Ltd., v. Thedford, 21 Tex. Civ. App., 254; Ullman. v. The Brunswick Title Guarantee & Loan Co., 96 Ga., 625; Rosser et al. v. Railway Co., 102 Ga:, 164; Cody v. First Natl. Bank of Gainesville, 99 Ga., 405; Rust et al., Exrs., v. Bennett et al., 39 Mich., 521; City Sav. Bank v. Enos, 135 Cal., 167; Merriman v. Wicker sham, 141 Cal., 567; In re Will of Bruendl, 102 Wis., 45; Fidelity & Casualty Co. v. Goff’s Exrx., 17 Ky. Law Rep., 214.

The general manager of the plaintiff corporation was not therefore incompetent to testify on the ground that the defendant was an administratrix, and the circuit court erred in reversing the judgment of the court of common pleas on that ground.

Judgment of the circuit court is reversed and that of the common pleas affirmed.

Shaucic, C. J., Price, Crew, Spear and Davis, JJ., concur.


author: Crew, J.

text:
    Koebler et al. v. Pennewell et al.

      Definition of morgue — Rights and povoers of crematory associations — Interpretation of Section 3586a, Revised Statutes — Does not prohibit undertaking establishment on residence street, when.

    1. In the interpretation of Section 35860, Revised Statutes, the word morgue, being without definition in the statute itself, must he given its usual and commonly accepted meaning which is, a place or dead-house, where the bodies of persons found dead are exposed for identification or that they may be claimed by their friends. And the Legislature in the enactment of the section must be held to have used and employed the word in „ that sense, and as descriptive of such a place.
    2. Above Section 35860, which provides that: -it shall be unlawful for any person or persons, company, association or firm to establish a morgue on any street or part of a street upon which are dwelling-houses, unless the owner or occupants of such dwelling-houses within two hundred yards of said proposed morgue give their written consent thereto, does not prohibit the location of an undertaking establishment on a residence street, nor make it unlawful to receive, care for and keep temporarily in an undertaking establishment thus located, in a private room thereof and unexposed to public view, the bodies of known and identified dead which are from time to time taken to such undertaking establishment at the instance and request of relatives or friends of the deceased that funeral services over the bodies may be held and conducted at that place.
    (No. 9474
    Decided November 20, 1906.)
    Error to the Circuit Court of Cuyahoga County.
    Suit was brought in the Court of Common Pleas of Cuyahoga County by Charles E. Pennewell et al. as plaintiffs against Julius Koebler et al., defendants, to enjoin the latter from maintaining and carrying on the undertaking business in and upon their own premises at No. 1264 Willson avenue, in the city of Cleveland, for the alleged reason that said business there conducted and carried on, at that place, constituted and was a nuisance, and they asked that said defendants be restrained and enjoined from establishing, keeping or using in or upon their said premises a morgue. In the court of common pleas upon trial of the issues joined, that court found the issues in favor of the defendants and dismissed the plaintiff’s petition. Plaintiffs appealed to the circuit court, where the cause was again tried upon the pleadings, exhibits and testimony. Upon the trial of the case in the circuit court that court made the following finding of facts, to-wit:
    “First. That the defendants, Julius Koebler and William Koebler, as partners, on and ever since the 5th day of July, A. D. 1903, have occupied the brick building described in the plaintiffs’ petition herein, and formerly a private dwelling-house, and known as 1264 Willson avenue, and also the premises upon which such building stands, and the appurtenance thereto, all of which are situated in the city of Cleveland, county of Cuyahoga and state of Ohio, and that said defendants, by themselves, their agents and servants, having during said time carried on upon said premises and in said building, and the appurtenance thereto, the undertaking business; that in connection with said undertaking business the said defendants, during said time, maintained, and kept on said premises and in said building a room or place in which, since the said 5th day of July, as the exigencies of said business required, the said defendants have from time to time kept the bodies of deceased persons for a period of time, varying from one to three days, and in most instances until burial. That said defendants at all times since said July 5th, 1903, when employed so to do, have sent to hospitals, railroad depots, residences, and other places, for dead human bodies, which they have transported to their said place of business, and have kept the same in said place so set apart for the same, until the same were taken away for burial. That for the purpose of enabling the said defendants to carry on said business, as undertakers and the said business of caring for and keeping dead human bodies, at the place aforesaid, they kept and maintained at said place two dead-wagons, a hearse and other vehicles and appliances necessary for the purposes aforesaid in which bodies were brought to said premises, driven into the barn and carried thence through a covered passage-way to said room in said house, neither body nor casket being exposed to view of persons outside said barn or house. That some of the bodies so received by the defendants at their said place of business were washed, dressed and embalmed at their said place of business after being brought there. That the said defendants propose to and will continue at said place, and the premises and the appurtenances thereon, and in connection therewith described in plaintiffs’ petition, to receive, wash, dress and embalm and keep the bodies of deceased persons, unless prevented from so doing by the order of this court.
    “Second. The court finds that said Willson avenue, on July 5th, 1903, and for a long time prior thereto and ever since, has been a public highway and street located within the city of Cleveland, county of Cuyahoga and state of Ohio, and that all of the plaintiffs, during all of the times aforesaid, have lived and still live upon said street and occupy dwelling-houses, located and fronting’ on said Willson avenue, as residences only; and all of which dwelling-houses are situated and fronting upon said Willson avenue, within two hundred yards of said building, known as 1264 Willson avenue, and within two hundred yards of the boundary lines of the premises fronting upon Willson avenue, and upon which said building is situated. That for- some time prior to the said 3th day of' July, A. D! 1903, and all the times herein mentioned, one of said plaintiffs has occupied a dwelling-house, as a residence only, immediately adjoining and north of said building known as No. 1264 Willson avenue, and another one of said plaintiffs during all of said time has occupied and still is occupying a dwelling-house as residence only, immediately adjoining and south of said building known as No. 1264 Willson avenue.
    “Third. The court finds that said defendants established their said undertaking business and the said business of so keeping dead human bodies at said building, known as 1264 Willson avenue, and the premises on which the same stand, and the appurtenances thereto, on or about the 5 th day of July,-A. D. 1903.
    “Fourth. The court further finds that the said Willson avenue in the vicinity where the said business of said defendant was^ established and has been maintained and carried on, was on and for a long time prior to July 5th, 1903, and ever since has been and still is a residence street; that within the distance of two hundred yards from said building known as 1264 Willson avenue, there are and at all times have been located a large number of dwelling-houses, used as residences only, fronting upon said Willson avenue and occupied by persons exclusively as residences. That the said defendants have never at any time obtained from any person or persons owning or occupying a dwelling-house and residence fronting and situated upon said Willson avenue, as a residence,, any consent of such person or persons to establish or maintain or keep their said business of receiving and keeping at said place, the bodies of deceased persons, or the consent of such person or persons to establish or maintain or keep at said building known as 1264 Willson avenue a morgue, and that said residence property has been materially depreciated in value, and the value of the use of same materially depreciated by the maintenance of said place.”

      As conclusions of law from the above. facts, said circuit court found and adjudged as follows:
    Conclusions of Law.
    “First. That the business of receiving and keeping dead bodies as carried on by the said defendants, at said place known as 1264 Willson avenue, constitutes the establishing, keeping and maintaining of a morgue, within the provisions of Section 3586a of the Revised Statutes of the state of Ohio.
    “Second. It is therefore ordered, adjudged and decreed, that the said defendants, each and both of them, their agents and servants and all persons claiming through or under them, be and they hereby are enjoined from receiving at said place known as 1264 Willson avenue in the city of Cleveland, county of Cuyahoga and state of Ohio, and the appurtenances thereto so occupied by them, the bodies of deceased persons, except for funeral purpose's only, and when so received, said bodies shall be fully prepared for burial in caskets, from which they shall not be removed and shall not remain upon said premises for said funeral purposes more than twelve hours, and that said plaintiffs recover of said defendants their costs herein to be taxed.”
    To which findings of fact and of law separately, .the said plaintiffs separately excepted, and to which findings of facts and of law separately, the said defendants separately excepted. And the defendants and each of them further except to said findings of fact in that there is a failure to find facts material to the defendants which are established by the evidence, and further that the findings of fact are imperfect in that they are too general in their terms and do not specifically find the facts in issue. Julius Koebler et al., defendants below, file their petition in error in this court asking a reversal of the judgment and decree of the .circuit court, and Charles E. Pennewell et al., plaintiffs below, file their cross-petition in error asking for a modification of said judgment and decree.

      Messrs. Olds & Willet and Messrs. Blandin, Rice & Ginn, for plaintiffs in error, cited and commented upon the following authorities:
    Endlich on Interpretation of Statutes, Sections 341, 342; Hall v. State, 20 Ohio, 7; Shultz v. Cambridge, 38 Ohio St., 659; Wescott v. Middleton, 43 N. J. Eq., 478; Kinnear Manufacturing Co. v. Beatty, 65 Ohio St., 264; Quincy Canal v. Newcomb, 7 Metcalf (Mass.), 276; Farrelly & Co. v. Cincinnati, 2 Disney, 516; Lansing v. Smith et al., 8 Cowen’s Reports, 146; Hartshorn v. South Reading, 85 Mass., 501; 15 Am. & Eng. Ency. Law (2d Ed.), 764; Wood on Nuisances (3d Ed.), par. 3; Gibson v. Donk et al., 7 Mo. App., 37; Cleveland et al. v. Citizens Gas Light Co., 20 N. J. Eq., 201; Duncan v. Hayes et al., 22 N. J. Eq., 25; Ross et al. v. Butler, 19 N. J. Eq., 294; Crawford v. Hospital for the Insane, 7 Montreal Law Rep., Q. B., 57; Robb v. Carnegie Brothers & Co., 14 L. R. A., 329; Long v. City of Elberton, 46 L. R. A., 428; Pennsylvania R. R. Co. v. Lippincott, 116 Pa. St., 472; Parrott
      v. C. H. & D. R. R. Co., 10 Ohio St., 624; Demarest et al. v. Hardham, 34 N. J. Eq., 469; Wood on Nuisances (3d Ed.), Vol. 2, Sec. 880; Henry v. Trustees, 48 Ohio St., 671; Sections 1464, 3573 and 3586, Revised Statutes.

      Mr. T. H. Johnson and Mr. A. W. Lamson, for defendants in error, cited and commented upon the following authorities:
    Spelling on Injunction, Section 373; Wood on Nuisances, Section 474, p. 646; Duncan v. Hayes et al., 22 N. J. Eq., 26; Ross et al. v. Butler, 19 N. J. Eq., 294; Cleveland et al. v. Citizens Gas Light Co., 20 N. J. Eq., 201; Catlin et al. v. Valentine, 9 Paige, 575; Gilford v. Babies’ Hospital, 21 Abbott, 159; Barnes v. Hathorn, 54 Me., 124; Columbus Gas Light & Coke Co. v. Freeland, 12 Ohio St., 392; Eller v. Koehler, 68 Ohio St., 51; Henry v. Trustees, 48 Ohio St., 672; 59 Central Law Journal, 201; Sections 3573 and 3586a, Revised Statutes.
   Crew, J.

If, in this case, upon the facts proven, the circuit court was warranted in finding as matter of law, “That the business of receiving and keeping dead bodies as carried on by the said defendants at said place known as 1264 Willson avenue, constitutes the establishing, keeping and maintaining of a morgue within the provisions of Section 3586a of the Revised Statutes of the state of Ohio,” then plaintiffs below were entitled to the relief prayed for, and should have had judgment in their favor abating said morgue. But, on the other hand, if the above finding of the circuit court was erroneous and unwarranted, then upon this record, there being no finding that the place was a nuisance per se, nor evidence to support such finding, plaintiffs were not entitled to .any relief, and their petition should have been dismissed. So that, from whatever view-point this record may be considered, it must we think be conceded that the judgment and decree as made and entered by the circuit court in this case is erroneous, and is the result of an endeavor on the part of the court to arbitrate, rather than to adjudicate, the matters in dispute between the parties. Upon the present record, then, the single question material for our consideration, and the one that is determinative of the rights of the parties hereto, is: Do the facts proven sustain and justify the conclusion of the circuit court that defendants were keeping and maintaining a morgue at No. 1264 Willson avenue, contrary to the provisions of Section 3586a, Revised Statutes? This section, so far as its provisions are pertinent here, is as follows: “It shall be unlawful for any person or persons, company, association or firm to establish a morgue on any street or part of a street upon which are dwelling-houses, unless the owner or occupants of such dwelling-houses within two hundred yards (200 yards) of said proposed morgue give their written consent thereto.” What, then, is a morgue within the purview and meaning of the above section? In the interpretation of this section, the word morgue being without definition in the statute itself is to be given its usual, ordinary and commonly accepted meaning, and the Legislature must be held to have employed and used it in that sense. The word is defined by standard lexicographers and dictionaries as follows:

Black’s Law Dictionary — Morgue. A place where the bodies of persons found dead are kept for a limited time and exposed to view, to the end that their friends may identify them.

Rapalje and Lawrence’s Law Dictionary— Morgue. A place where the bodies of persons found dead are kept for a limited time, to the end that their friends may identify and claim them.

Century Dictionary — Morgue (a transferred use of old French Morgue, in the Chastelet of Paris; a certain chair wherein a new-come prisoner is set and must continue some hours without stirring either head or hand, that the keeper’s ordinary servants may the better take notice of face and favor). Cottgrave. A place where the bodies of persons found dead are exposed that they may be claimed by their friends; a dead-house.

Standard Dictionary of the English Language —Morgue. A place where corpses of persons found dead are exposed for identification; a dead-house.

Webster’s International Dictionary of the English Language — Morgue. A place where the bodies of persons found dead are exposed that they may be identified or claimed by their friends,; a dead-house.

Thesaurus Dictionary of the English Language by Professor March — Life—Funeral. Page 605. Morgue. A place where the corpses of persons found dead are exposed for identification.

Encyclopedic Dictionary — Morgue. A place where the bodies of persons found dead are exposed in order that they may be recognized and claimed by their friends; a dead-house.

From the foregoing definitions we must conclude that the word morgue, in common parlance, is used to designate or describe a place where the bodies of unidentified dead are kept and exposed to view. for the purpose of identification or that they may be claimed by their friends. And there is nothing in Section 3586a to indicate that the word as therein used was employed in any other or different sense, or that the Legislature intended to give to it, or that it should have as therein used, a different- or more comprehensive meaning. Applying then this definition or test, were the defendants below keeping or maintaining a morgue in or upon their premises at No. 1264 Willson avenue? In the present case this is not to be determined solely upon the facts stated by the circuit court, for complaint was made in that court, and is here made, by counsel for plaintiff in error, that the findings of fact as made and stated by the circuit court are incomplete, indefinite and misleading, that material and controlling facts established by the evidence are omitted therefrom, and that the facts found are so imperfectly stated, or stated by the court in such manner, as to be misleading. And counsel have presented to this court with their petition in error a bill of exceptions containing the whole of the evidence introduced on the trial of this cause in the circuit court. An examination of this bill shows the following facts established by the evidence without contradiction: Prior to July 5th, 1903, Julius and William Koebler were engaged in the undertaking business in the city of Cleveland. On that date, having theretofore purchased the house and premises at No. 1264 Willson avenue, they established their said undertaking business at that place. In the house situated on said premises, which house had formerly been a dwelling-house, they selected, fitted up and thereafter maintained a certain room or place which they called the chapel, in which from time to time funeral services were held and conducted, and in which the bodies of deceased persons received by them were temporarily placed and kept until their interment. From July 5th, 1903, to the time of the trial of this 'case in the circuit court, which was more than a year and five months, the total number of bodies received by them was twenty-six (26). Of these all but three had been prepared for burial before being taken-to defendants’ place of business, and all were taken there at the instance or request of relatives or friends of the deceased that funeral services might be held and conducted from that place. These bodies when at their establishment were placed in, caskets, were kept in this chapel, or a private room adjoining the same, and were not exposed to public view except perhaps at-the time when funeral services were being conducted over the remains. No unidentified or derelict body was ever in their place, and while, as found by the circuit court, bodies were taken to defendants’ place of business from hospitals, railroad depots and private residences, yet in every instance they were, as above stated, taken there at the request of relatives or friends, and in order that funeral services might be conducted and held at that place. That which was done by defendants in this behalf was not different from that done by persons conducting modern undertaking establishments in all the large cities of the state. These facts being undisputed, the finding and conclusion by the circuit court that the business of receiving and keeping dead bodies as carrried on by defendants at their place, No. 1264 Willson avenue, constituted the establishing, keeping and maintaining a morgue, was, we think, unwarranted and erroneous.

We believe that the word morgue as found in this section was advisedly used by the Legislature, and that it clearly and appropriately defines and expresses the legislative intent as to the character of place intended to be prohibited; namely: a place where the unidentified and derelict dead are at all times received and kept and exposed to public view for the purposes of identification, thereby inviting and attracting to such place crowds of the morbid and curious who visit the place for no other purpose than that they may view the bodies there exposed. But in the absence of language requiring such construction, we can not think that the prohibition of this section was directed against, or was intended to include, the ordinary undertaking establishment conducted in the usual and customary way. If such had been the intention of the Legislature, it was easy to have expressed that intention in plain and unmistakable terms, but no such intention is expressed. The judgment of the circuit court will be reversed and the petition of the plaintiffs below, defendants in error here, will be dismissed.

Judgment reversed and petition dismissed.

; Shauck, C. J., Price, Summers, Spear and Davis, JJ., concur.


author: Price, J.

text:
    Willis et al. v. Baker, Guardian.

      Action by wife — To declare void a conveyance on ground of undue influence — Burden of proof on the plaintiff — Conveyance of lands by wife to husband — Will of husband in favor of devisees — Husband retains possession during life — Death of testator — Subsequent devise of lands by wife — Law of wills —Evidence.

    1. In an action by a wife, or a guardian in her behalf, to have declared null and void a conveyance of her lands on the ground that she was induced to make such conveyance by undue influence, or on the ground that she was not conscious of her act in executing the same, and it appears from its face that it was duly executed and acknowledged in the manner and form prescribed by the statute, the burden is upon the plaintiff to establish one of said grounds by clear and convincing proof, and a mere preponderance of the evidence in its favor is not sufficient.
    2. On the trial of said action, it appeared from the evidence, that in December, 1900, the wife owned fifty acres of land and that her husband owned ten acres immediately adjoining; that they were of advanced years and childless; were in ill health, and 'had been considering and contemplating a testamentary disposition of their lands to certain nephews and nieces, and a foster daughter, and for that purpose secured the advice and services of a justice of the peace, who informed them that to carry out their plan, it was necessary for the wife to convey her lands to the husband in order that he might dispose of all the lands by his will, and such deed was drafted by the justice, and she was assisted in signing her name thereto, which deed was duly witnessed, and a certificate of acknowledgment made thereon by the justice in conformity to the statute. Thereupon, as a part of the same transaction, the will of the husband was prepared, by the terms of which he devised all the lands to said nephews and nieces and foster daughter, and this will was executed according to the forms of law, and each of said instruments was then delivered to the husband with instructions by the justice to have the deed recorded and the will deposited with the probate judge; but the husband retained possession of the same without record during his life, and at his death they passed into the custody of the wife or widow. The will was after-wards probated by order of the probate court. The foster daughter who claimed to have been present when the deed and will were executed, testified at the trial that the wife was unconscious when her name was signed to the deed, but there was little evidence to corroborate her, and her statements were contradicted by the justice and three other witnesses who were present at the same time. About ten years after the death of the husband, his widow, who was then of sound mind and memory, also made a will in which she recalled and recited the execution of her said deed and her husband’s will, and the substance of their contents, and in which she also recited the purpose for which they.were executed, and that she desired to carry out said purpose by her will, and then devised the same lands to the same persons named in the husband’s will.

      Held: That in declaring the deed of the wife null and void on such evidence, and in quieting her title to the fifty acres against the provisions of the husband’s will, the court disregarded the above rule requiring clear and convincing proof, and its decree should be set aside.
    (No. 9717
    Decided, November 20, 1906.)
    Error to the Circuit Court of Hancock County.
    On the 7th day of January, 1904, the defendant in error filed in the Court of Common Pleas of Hancock County his petition against the plaintiff in error for a decree quieting the title of his imbecile ward in certain real estate situate in that county. The petition shows the relationship between the ward and the plaintiffs in error, who are nephews and nieces of said ward, and her deceased husband, John Greenlee. Other relatives are mentioned, but their names are not material here.
    It is in substance alleged that said ward for many years had owned and been in possession of a certain fifty-acre tract of land in said county, describing it, and that prior to December 23, 1890, the said ward and her husband were residing thereon, and that' the husband owned ten acres immediately adjoining, which was timber land, while the fifty acres belonging to his wife were valuable oil lands; that in the fall of 1890, both the husband and wife, who were old people and childless, were taken seriously ill with typhoid fever, and that it was then thought that John, the •husband, would not recover, and that Robert Willis, who had married his sister, wishing to pro-cure said property for his own children, who were nephews and nieces of John Greenlee, to the exclusion of other relatives, urged him to make his will in their favor; that by persuasion and undue influence said Robert Willis procured the consent of said John Greenlee to so make his will, excepting the oneTfifth part of which he wished to give to a foster daughter, Mary Driffield; that said Robert Willis obtained the service of M. A. Adams, a justice of the peace, to draw said will, when it was discovered that John Greenlee, as they supposed, owned none of said farm; that the said wife, Anna, was sick with typhoid fever, old and infirm, and she was urged by Robert Willis to deed her' land to her husband, stating that her husband wished to make a will before he died, and that he would see ample provision made for her support during life; that said justice of the peace advised both husband and wife that the husband could not make a will of the land unless the wife would convey her fifty acres to him, and being sick, infirm and easily persuaded, and wishing to please her husband, on the 23d day of December, 1890, she acknowledged a deed purporting to convey the entire sixty acres to one George Crawford, and on the same day and at the same time said Crawford conveyed said sixty acres to John Greenlee, the husband; and thereupon on the same day and at the same time said husband executed a will giving his wife a life estate in said lands, and providing that, at her death, the lands should go one-fifth to each of said four children of Robert Willis, and one-fifth to the foster daughter, Mary Duffield. The will gave small sums of money to other relatives.
    The petition further says that John recovered from his sickness and then revoked and repudiated said will; that said deeds were never recorded and were never intended to be recorded, or of any effect; that after the recovery of the husband “they were placed in a box and held as relics of a time gone by;” that the husband lived for more than a year after said deeds and will were executed, and all parties regarded them as of no force and effect; that Matthew Willis, who \is named as executor in the will, knew of the existence of these deeds and will and treated them as revoked and repudiated so long as Anna Green-lee retained her mental faculties.
    It is next averred that the defendant in error, John Baker, was appointed guardian for Anna’ Greenlee, an imbecile, in 1903, and soon after-wards Matthew Willis, obtaining custody of the will of John Greenlee, caused the same to be probated. He also demanded of the guardian of the widow, Anna, the deeds mentioned, so that the same could be placed on record. This demand was refused by the guardian, and he commenced this action to have the deeds declared void and the title to the land quieted in his ward.

      The plaintiffs in error answered, admitting the various ties of relationship' described in the petition, and that prior to the 23d of December, 1890, the wife, Anna, owned the fifty acres and the husband ten acres as alleged in the petition, and that the lands were of the character described; the conveyances executed are admitted, also the execution of the will and its provisions are admitted, but the answer denies all persuasion, undue influence, lack of knowledge and mental incapacity of Anna, at the time she signed the deed.
    By way of cross-petition, the. defendants like-, wise assert the ownership of the lands by the husband and wife — fifty acres being her property and the ten acres adjoining being the property of the husband; that John Greenlee, having possession of said deeds, neglected to have them recorded, and that at his death, his widow, Anna, kept said deeds among other papers of her deceased husband, and that when Baker became her guardian in 1903, said deeds came into his possession, and that he wrongfully refuses to have them recorded, and refuses to deliver them to the defendants, now plaintiffs in error, that they might have them placed of record. The prayer of the cross-petition is for an order requiring Baker to deliver said deeds to the defendants and for other equitable relief.
    The court of common pleas found and rendered judgment for the defendants. On appeal, the circuit court found for the guardian, and quieted the title of his ward in the premises described in the petition.
    That court made a statement of facts which, will be noticed with other facts in the opinion.

      Error is prosecuted here to reverse the judgment of the circuit court.

      Messrs. McConica & Dwiggins and Messrs. Snyder & Snook, for plaintiffs in error, cited and commented upon the following authorities:

      Dille et al. v. Woods et al., 14 Ohio, 126; Bristo v. Wright, 2 Smith’s Leading Cases, 1419; Hill v. Supervisor of Road District, etc., 10 Ohio St., 621; Thatcher v. Heisey, 21 Ohio St., 668; Commercial National Bank v. Wheelock, 52 Ohio St., 534; Eureka, etc., Insurance Co. et al. v. Baldwin, 62 Ohio St., 363; Dean v. Yates et al., 22 Ohio St., 389; Powers v. Armstrong et al., 36 Ohio St., 358; Baldwin v. Snowden et al., 11 Ohio St., 203; Feagles v. Tanner et al., 11 Ohio Circuit Decisions, 172; Siebert v. Switzer et al., 35 Ohio St., 665; Ford v. Osborne, 43 Ohio St., 1; Jones on Real Property, Vol. 2, Sec. 1196; Devlin on Deeds, Sec. 531; Stewart v. Gordon, 60 Ohio St., 174; Potter v. Potter et al., 27 Ohio St., 84; Dukes v. Spangler, 35 Ohio St., 119; Spangler v. Dukes, 39 Ohio St., 642; Section 5290, Revised Statutes.

      Messrs. Phelps & David and Messrs. Blackford & Blackford, for defendants in error.
   Price, J.

The parties agree 'upon some of the facts of this case, and they are not all of a merely historical character. John Greenlee and his wife, Anna, in December, 1900, were old people, residing on sixty acres of land in Hancock county, and this had been their home for many years. Fifty acres of the sixty were valuable oil producing lands owned by the wife and on it was the residence, and most, if not all, the other improvements: The other ten acres belonged to the husband and were in most part timber lands. They had no children, but had nephews and nieces residing in the immediate neighborhood, who are now plaintiffs in error, but the wife had no known blood relatives living within the United States. The husband had a brother, Matthew, then residing in Delaware county, Pennsylvania, and another brother, James, then residing in Gratiot county, Michigan; a brother-in-law, Henry Trotter, then living in Ireland, and a sister, Jane Lewis, then residing in Knoxville, Tennessee. Mary Duffield was a foster daughter, who had resided with the old couple from her youth and was regarded as one of the family during their lifetime and remained with the widow, Anna, after the death of John Greenlee.

In December, 1900, both the husband and wife were in ill health. According to the testimony of some of the witnesses, the husband was suffering from typhoid fever, and other witnesses state that his affliction was some disease of the lungs. It was thought by his physician, the visitors and attendants that he would not long survive. It seems that the wife was afflicted with what was considered typhoid fever, but as to the severity or virulence of the disease, the witnesses greatly differ..

It was found by the circuit court as one of the facts of the case, “that on the 23d day of December, 1900, said John Greenlee seemed, in his then condition, to be desirous of making a will, and for some reason, or under some influence, seemed at that time to have a desire that the defendants, Matthew Willis, Jane Beeson, John Willis and Rachel Duffield, who were the children of a sister of said John Greenlee, and one Mary Duffield, a foster daughter of the said John and Anna Green-lee, should in equal proportions be the recipients of his testamentary bounty.” M. A. Adams was a neighbor and a justice of the peace, and he was invited to the home of the Greenlees to draft the will, and he was then informed of the desire of John that said farm should be ultimately divided between said five individuals. In conversation with the husband and wife about his desire and the nature of the property to be disposed of, it was found by the justice that the farm did not all belong to John, but that fifty acres of it belonged to his wife. The justice perhaps suggested, that to enable the husband to dispose of the entire sixty acres, it was necessary that the wife should convey her land to the husband. Further proceedings were deferred until the next day, with the understanding that such conveyance and will should be prepared by the justice, Adams. He did prepare a conveyance of the wife’s lands to John Greenlee, through George Crawford, another neighbor, who acted as trustee for that purpose, and on the evening of December 23d, Adams, the justice, and Crawford repaired to the home of the old couple, and there a conveyance of the wife’s lands to Crawford was submitted for the wife’s signature, and her name was signed to the same by some one, and the same duly witnessed. The justice then and there certified that the execution of said deed was duly acknowledged before him. At the same time George Crawford executed a deed for the same lands to John Greenlee, which was duly witnessed and acknowledged.

At the same time, and as a part of the same transaction, the justice, Adams, drafted a will by the terms of which he gave his wife a life estate in the sixty acres and the remainder to the said nephews and nieces and Mary Duffield, according to his desire as expressed on the previous day. The will was signed by the husband and duly attested by two witnesses. After these three documents had been thus completed, they were delivered to John, or as stated in the sixth finding of fact — “that thereupon said Adams, justice of the peace, prepared a formal deed of conveyance of said entire fifty acres of land from the said Anna Greenlee to one George Crawford, a neighbor selected for that purpose, and a like conveyance from Crawford to John Greenlee, which two deeds were then formally executed, as was also a will of John Greenlee, and all three of said documents were left by the said justice of the peace in the custody and control of the said John Greenlee and his wife, Anna Greenlee, and the attendants in charge of said John and Anna, both of whom were then seriously ill as aforesaid, with instructions to have said two deeds transferred and recorded, and said will deposited with the probate judge of said county.”

Both husband and wife measurably recovered from their illness and the husband had possession of the deeds and will until he died, which was more than a year after their execution, after which they were in the custody of his widow, Anna, until the appointment of Baker as her guardian on the ground of her imbecility. This appointment was made on or about the — day of-, 1903, and he took possession of the deeds and will and refused to surrender either, but on citation issued by the probate court, he surrendered the will and it was duly probated.

The foregoing facts are taken from the findings of the circuit court and from the undisputed evidence contained in the record. There is no intimation that John Greenlee was lacking in mental capacity at the time the will and deeds were executed, or at any other time. We have a right to assume from the facts and circumstances that he was then of sound mind and disposing memory; and there is no claim or ground for claiming that the wife, Anna, was of weak mind or lacking in mental capacity, except at and about the time of the execution of the deeds and will, and upon that subject the circuit court states its finding of facts as follows:

“Seventh. That the execution of said deed by the said Anna Greenlee was formally accomplished after the following manner, that is to say, she was held up in the bed in which she was confined, in a sitting posture, and the foster daughter, Mary Duffield, under the direction of the justice, took the hand of said Anna Greenlee, in which pen had been placed, and wrote the name of said Anna upon said deed, and the said justice thereupon certified the acknowledgment of the deed as having been executed.

“Eighth. That at the time said Anna Green-lee was over seventy years of age, and in that condition of health that she did not understand what was being done respecting the execution of the deed or its effects upon her or her property rights, and in fact was not conscious of the fact that she was being procured thus formally to execute a conveyance to her property.”

The ninth and tenth findings state in substance that there was in fact no consideration for the conveyance of the wife, and that the same was not intended for the use and benefit of the husband himself, but in order to place the nominal legal title in him to the end that he might dispose of the lands by his will then being executed as part of the same transaction; and that after the instruments had been executed, the wife and husband were dissatisfied therewith and expressed their disapproval of the transaction, but that no reconveyance was ever made and that these documents were kept as mere “relics and mementoes.” We think it plainly appears from these findings and other facts, that the old couple had discussed the subject of testamentary disposition some time before the justice of the peace was called in, and that each had sufficient mind to canvass the objects of their bounty and contemplate some mode of carrying their wishes into an instrument that would accomplish their desires. Whether they were afterwards dissatisfied with the provisions of the deeds and will, is a matter seriously in dispute and the evidence relating to their expressions is in sharp conflict, but no attempt was ever made to undo any part of the important transaction— no attempt at reconveyance or revocation of the will. They had been executed and delivered, and the husband’s will is now of record. It is idle for the court, or any one, to say they repudiated these solemn instruments, for the law does not recognize that method of destroying their effect.

And as to the seventh and eighth findings, it can be said that the evidence of Mary Duffield alone tends to support them, and the manner of the execution of the deed by the wife, as described in the seventh finding, is founded solely upon that evidence. She is financially interested in setting aside the deeds, and thereby render the will inoperative on the fifty acres conveyed by the wife to her husband, as will appear hereafter from the provisions of the wife’s will. She is flatly contradicted as to the mental and physical condition of the wife by the justice of the peace, George Crawford, and at least two other witnesses who were present when the documents were executed. They say that instead of the wife being sick in bed and unconscious, she was up and about the house and took part in the business on hand. The petition of the guardian does not aver that Anna was unconscious when she signed the deed. We are quite confident that the great weight of the evidence is against the theory of the seventh finding. But we grant it, that the circuit court might be justified in believing Mary Duffield and disbelieving the other witnesses, and if the consideration of the case ended here, we would not proceed to weigh the evidence and determine its preponderance. However, there are other facts of such probative force, that they silence all doubt on the present controversy, and demonstrate that the circuit court did not apply the proper rule in considering the evidence.

To justify the court in declaring the deed void, the evidence should be clear and convincing and the.rule of preponderance stands aside, as held in Potter v. Potter, Exrx., 27 Ohio St., 84; Ford v. Osborne, 45 Ohio St., 1.

As before stated the deeds and will were executed December 23, 1900. The sixth finding states that “the two deeds were then formally executed,” and whether the lower court intended to use so strong a phrase or not, it is not disputed that the certificate of the justice to each deed was in due and legal form. What, then, is its legal signification, when the wife through her guardian' attacks the conveyance?

It is said in Baldwin v. Snowden et al., 11 Ohio St., 203, that “a regular statutory certificate of the acknowledgment of a deed of conveyance, made by husband and wife, is, in the absence of fraud, conclusive evidence of the facts therein stated.” In the opinion of the court, by Scott, J., the character and effect of such a certificate are fully discussed. Again, in Ford v. Osborne, 45 Ohio St., 1, the subject was before this court, and it is there held that: “Where it is claimed by the wife that a deed, signed by her husband and herself as a conveyance of her lands, has not been acknowledged by her as it purports to have been, the burden is upon her to show the fact by clear and convincing proof; a mere preponderance of the evidence is not sufficient to support a finding contrary to the certificate of acknowledgment.”

Looking to the evidence, as we have a right to do, in order to ascertain whether the circuit court applied the proper standard, we have no difficulty in deciding that it did not. This view is confirmed and strengthened when we consider and compare provisions of the husband’s will with those found in the will of the wife executed over ten years later. He devised to his wife a life estate in the sixty-acre farm, and the stock, household goods, provisions and other goods and chattels absolutely, with the interest on all sums due him, and that on the death of the wife, his executor should sell the land to the best advantage and divide the proceeds and remaining personal property in paying certain specific legacies, and in the sixth item gives and bequeaths to Mary Duffield, “who has been as good and kind to us as a daughter, and to my nephews and nieces, John Willis, Rachel Duffield, Jane Beeson and Matthew Willis, each one-fifth of the remainder of my estate.” Matthew Willis was made executor with power to sell the real estate.

We now turn to the will of Anna Greenlee, executed on the 24th day of January, 1901. By the second item she gives to Mary Duffield, the foster daughter, all the personal estate. The third item recites — “Whereas the farm on which I now reside, consisting of fifty acres, * * * was originally purchased, conveyed to and owned by me; and whereas the ten acres immediately adjoining said fifty acres on the south, and being part of what is known as the Greenlee farm, was owned by my deceased husband, John Greenlee; and whereas, many years ago during the lifetime of my said husband, I myself being sick in extremis, my said husband having some collateral heirs hereinafter named, and desiring to make some disposition of our said real estate, in view of my impending or contemplated death, my said husband then procured to be drafted and formally executed, two several deeds whereby my said fifty acres of land were formally conveyed through a trustee to my said husband, John Greenlee, but which deeds have never been recorded and are yet in my possession; and whereas, at the same time and contemporaneously with the formal execution of said deeds, the said John Greenlee executed after some form and fashion his last will and testament whereby he directed, devised and bequeathed all his property to me for life, and provided in substance that upon my decease, said entire Greenlee farrri of sixty acres should be sold and the proceeds divided into five-equal moieties— one to the said Mary Duffield; one to Matthew Willis; one to John Willis; one to Rachel Duffield, and one to Jane Beeson. * * * And whereas, notwithstanding the death of John Greenlee many years ago, the said will was never probated, nor offered for probate, but the same has remained along with the said two deeds in my possession, and I am advised and believe there is grave doubt as to the validity of either said deeds or said will upon the legal title to said land. Now, therefore, in order so far as possible to carry into effect my husband’s plan of testamentary disposition, I will and direct that soon as practical after my decease my executors hereinafter named shall sell all of said real estate, including said ten acres so formerly owned by my said husband, and which but for said will I do inherit, either at public or private sale in their discretion. That after deducting from the pro-> ceeds of such sale the reasonable cost and expense of. the settlement of my estate and of said sale, that the balance of said proceeds be divided into five equal moieties and disbursed and paid out as follows: One moiety to Mary Duffield; one moiety to Matthew Willis; one moiety to John Willis; one moiety to Rachel Duffield; one moiety to Jane Beeson.” This is followed by a provision concerning the rights of any beneficiary who should contest her will.

The testatrix seemed to have a distinct and accurate memory of the transaction of December 23d, 1900- — more than ten years previous — and while she recites in her will that when she signed the deed she was “sick in extremis,” it is not pointed out or asserted that she was unconscious' or otherwise mentally incompetent. She recalls the purpose which the husband had in view in the execution of the deeds and will, and, loyal to his memory, she would follow and execute his purpose by devising the land or its proceeds to the same beneficiaries — the nephews and nieces. It is not now disputed that when she made this will she was of sound mind and disposing memory, and a more emphatic ratification of what was attempted to be accomplished by the deeds and will, we can not imagine. The doubt about their validity was not her doubt, but a doubt which her adviser had inspired, and she made her will in order to set everything at rest. But she can not thus cut out the deeds and will of December 23, 1900. They had been delivered and were never revoked or legally set aside. They were not “held as relics of a time ■ gone by,” as averred in the petition, nor “kept as relics and mementoes,” as stated by the circuit court. They were living instruments solemnly executed according to legal formalities, and should be placed on record as such.

The circuit court did not follow the correct rule as to the standard of proof required to sustain the plaintiffs’ case, and its judgment is reversed; and as all the evidence is before this court, it seems unnecessary to remand the case for another trial, and we think it our duty to render final judgment.

The plaintiff is denied the relief prayed for, and his petition is dismissed. The plaintiff is directed to surrender to the plaintiffs in error the deeds in controversy that they may be recorded.

Judgment reversed.

Shauck, C. J., Crew, Summers, Spear and Davis, JJ., concur.


author: Shauck, C. J.

text:
    Yaryan, a Taxpayer, v. The City of Toledo et al.

      A bill of exceptions is available — To all parties, when.

      A bill of exceptions taken and filed in a cause within the time limited by the statutes is available on proceedings in error to all parties whose exceptions therein appear.
    (No. 10208
    Decided November 20, 1906.)
    On motion to strike bill of exceptions from the files.
    The cause was tried on appeal in the circuit court. It was a suit brought by Yáryan, a taxpayer, to enjoin the misapplication of municipal funds which it was alleged would result from the execution of a contract for the construction of a filtration plant for the city of Toledo, the proceedings leading to the contract being affected by alleged fatal illegalities. When the cause was tried in the circuit court the defendants were the city of Toledo, the Norwood Engineering Company, with which the original contract had been made, and Bentley & Sons, sub-contractors. The city had changed its attitude towards the construction, and at the time of the trial it was insisting that the contract was illegal. By the judgment of the circuit court the taxpayer’s petition was dismissed.
    Qn the trial of the case several exceptions to the rulings of the circuit court were taken by the city and by the contractors as well as by the plaintiff, and within the time limited by the statute said exceptions were reduced to writing and a joint bill showing the several exceptions was tendered to the judges of the circuit court and signed by them and filed in the cause. Subsequently a petition in error was filed in this court by Yaryan for the reversal of said judgment, for errors appearing upon the record, the record being filed with the petition in error. A cross-petition in error has been filed by the city and the record, including said bill of exceptions, has been printed. The defendants in error other than the city now move the court to strike said bill of exceptions from the files upon the grounds: first, that said bill of exceptions purports to be the joint bill of the plaintiff in said cause and the city of Toledo, one of the defendants in said cause second, that said bill is not and does not purport to be the exceptions in writing of either the plaintiff in said cause or the said defendant, the city of Toledo; third, that neither the plaintiff in error, Yaryan, nor the city of Toledo reduced either his or its exceptions to writing and filed the same in said cause not later than forty days after the overruling of the motion for a new trial; fourth, the trial judges in said cause in the circuit court had no power or authority to allow or sign said bill of exceptions; fifth, that said trial judges had no authority to correct, sign or allow any bill of exceptions which purported to present the exceptions in writing by several parties to said cause.
    For the motion: Messrs. Smith & Baker.

    Contra: Mr. C. S. Northup and Mr. L. W. Morgan.

   Shauck, C. J.

Counsel presenting the motion urge the conclusion that there is no warrant for taking a joint bill of exceptions and that a bill taken by two or more parties to an action is not a bill available to either on proceedings in error. They do not appear to be of the opinion that two bills of exceptions showing the same rulings by the trial court and the same exceptions by counsel would inform us either more definitely or more certainly of the proceedings which we are called upon to review. In support of the conclusion stated they make the two propositions, that proceedings in error must in all respects be taken according to the provisions of the statutes by which they are authorized, and that a joint bill of exceptions is not contemplated by the statute, thei-e being no provision relating to the subject except that of Section 5298, Revised Statutes, that “the party objecting to the decision must except at the time the decision is made and time may be given to reduce the exception to writing, but not more than fifty days beyond the date of the overruling front, the adjournment of the term at which such decision was rendered by the court when a motion for a new trial is not necessary,” and that of Section 5301, Revised Statutes, “the party excepting must reduce his exceptions to writing and file the same in the cause.” To connect these positions with the conclusion, it must be understood, of course, that the singular number excludes the plural and what a party may do, parties may not do. This view of the subject regards neither the practice of a half century under, these provisions nor the office of a bill of exceptions. We have all become quite familiar with bills of exceptions taken jointly by numerous plaintiffs or defendants covering entire proceedings in a cause from the empanelling of a jury to the overruling of a motion for a new trial. But none of us has known of more than one bill of that comprehensive character taken in a single cause. It is in accordance with established and familiar practice that a bill of exceptions of that character taken by a party and filed in the reviewing court with his petition in error is resorted to by his adversary as the basis of a cross-petition in error upon which relief is granted. This settled practice recognizes the office of the bill of exceptions, which is to place upon the record the rulings of the court, and the exceptions thereto, after the issues of fact are made up. It does not appear to have occurred to any one that the • number of entries upon a demurrer or motion, or of a judgment upon an agreed statement of facts, must equal the number of excepting parties in order that their seyeral exceptions may appear. Bills of exceptions, -in whatever court they may be taken, are subject to the same requirements. The view urged by counsel for the motion may be effectively tested by applying it to a bill of exceptions taken in the court of common pleas with a view to a proceeding- in error for the reversal of its judgment on the weight of the evidence. Assuming the evidence to consist, in a material part, of documents whose genuineness is the subject of controversy, it is obvious that their appropriation by one party for the purpose of his bill of exceptions would deprive the others of an opportunity to prosecute proceedings in error upon that ground.

It is true that proceedings in error, and the taking of bills of exceptions as the basis therefor, are statutory, and that the statutes by which they are authorized must be substantial^ pursued. But such statutes are remedial and they are to be interpreted with a view to accomplishing their purpose. In view of the general rule relating to the interpretation of remedial statutes the section cited .in support of the motion should be regarded as requiring only that a party may not rely upon any exception taken during a trial unless it is reduced to writing, and a bill making it to appear is signed and filed in the cause. But care seems to have been taken by the Legislature to prevent the application to such proceedings of the view -that is now urged. Part Third of the statutes is remedial. It embraces Sections 4947 to 6793 inclusive. The first of these sections is devoted to the interpretation of Part Third and it provides that “words in the plural include the singular and in the singular include the plural number.”

The bill is -therefore taken in a manner that would seem to meet the requirements of the statute even if all related provisions should be strictly construed. Notwithstanding the long and general acquiescence in these views and the obvious reasons by which they are supported, a report of the case may be accepted as valuable -by those who think that all cases should be reported..

Motion overruled.

Price, Crew, Summers, Spear and Davis, JJ., concur.