author: McIlvaine, J.

text:
    Patton v. Patton.
    1. The proviso in section 1, of the act of March 30, 1874, amending the Wills’ act, 1852, which declares that a bequest to any benevolent, religious, educational or charitable purpose, shall be invalid and void if the testator dies within twelve calendar months from the execution of the will, leaving issue of his or her body living, or their legal representatives, is a constitutional and valid enactment.
    2. Such void bequest never takes effect, and if no other disposition be made of the property in the will, it descends to the heir immediately upon the death of the testator.
    3. Such bequest is not saved from the condemnation of the statute by making it contingent upon the extinction, of the lineal descendants of the testator. In case of such extinction, collateral heirs may assort the invalidity of the bequest.
    4. Where a testator gives direction to his executor to sell real estate for the purpose of paying a void bequest, and no disposition over is made of the property by the will, it descends to the heir as land, and is not subject to the power of sale. ' '
    Appeal. Reserved in the District Court of Highland County
    Joseph D. Patton executed his will on the 29th of January, 1878, and died on the 24th of March following, seized of a large estate, both real and personal, leaving surviving him,Betsy Ann Patton, his widow, Joseph Frank Patton, his grandson, and only surviving lineal descendant, and James II. Patton, and others, his brothers and sisters. Betsy Ann, the widow, died in July, 1880, and Joseph Frank, the grandson, died intestate in March, 1881, childless, and without brothers or sisters, and his father and mother being then dead, left Augusta A. Curtis and Jennie Hill, sisters of his mother, his next of kin.
    The following is a copy of Joseph D. Patton’s will:
    “I, Joseph D. Patton, of the county of Highland, and state of Ohio, do make and publish this my last will and testament:
    “ 1st. I devise that all my debts and funeral expenses be paid out of any money on hand or owing me, at the time of my death, or if there be no money on hand or owing me, then out of the proceeds of the sale of as much of the personal property belonging to me at the time aforesaid, as may be necessary for such purpose.
    2d. All the remainder of my personal estate, including moneys, rights in action, household goods and goods of every kind, and all chattels, I give and bequeath to my wife, Betsy Ann Patton, during her natural life, and at her death, to my grandson, Joseph Prank Patton.
    “ 3d. I give and devise to my wife, Betsy Ann Patton, all my real estate during her natural life, and at her death I give and devise the same to my grandson, Joseph Prank Patton.
    “4th. After the death of my wife, and during the minority of my said grandson, I give to my executor, hereinafter named, or to his successor in office, the possession and control of my said real estate, and direct that he apply the income from said real estate to the proper support, maintainance and education of my said-grandson, or so much thereof as may be necessary for such purpose, and that the residue (if any) be safely invested for his benefit by said executor, or the lawful guardian of said grandson.
    “ 5th. If my said grandson, Joseph Prank Patton, die leaving no child or children, then I direct my said executor, or his successor, to sell all my real estate in such manner and upon such terms as he shall deem best, and to execute proper conveyance therefor, and the proceeds of such sale, also moneys and other property devised by me to my said grandson, after payment of costs and expense of administration, I direct to be paid, share and share alike, to the Board of Home Missions of the Presbyterian Church in the United States of America, whoso office is now in New York city, and to the Board of Foreign Missions of the Presbyterian Church in the United States of America, whose office is now in New York city, to aid in carrying on the work of Foreign and Domestic Missions. But if my said grandson die leaving a child or children, then I give and bequeath to said child or children all moneys and property hereinbefore mentioned and devised, such child or children to take said real estate in fee simple.
    “ 6th. I nominate Richard C. Barrett as executor of this my last will and testament, and I authorize him to sell at pub-lie or private sale so much of my personal property as may be necessary to pay debts and funeral expenses.”
    This is a civil action brought by James II. Patton, a brother of the testator, Joseph D. Patton, for the partition of the real estate of which the testator died seized, among his brothers and sisters and their legal representatives, all of whom are parties, and who are alleged tobotheowners thereof in fee simple.
    All persons claiming an interest in the real estate are also made defendants.
    The Boards of Home and Foreign Missions deny the title of the brothers and sisters of the testator, and claim the entire beneficial interest in the lands under the fifth item of the will.
    Augusta A. Curtis'and Jennie Hill claim the estate as the heirs and next of kin of Joseph Frank Patton.
    The executor of Joseph D. Patton, the testator, claims the right to sell the estate under the fifth item in the will, and to pay the proceeds to whomsoever entitled.

      Hart and Hough, for plaintiff:
    We claim: 1. That the bequest to the Boards of Home and Foreign Missions falls directly under the act of March 30, 1874.'
    2. That there is no room for construction, because there is no doubt or ambiguity in the language of the statute which calls for or needs construction. It is not a remedial statute. It does not conflict with any common law right. It is not a statute in derogation of the common law, and there is no mischief which it was passed to correct. Sedgwick on Stat. and Const. Con. (2d ed.) 194; Bosely v. Mattingly, 14 B. Mon. 89; Fisher v. Blight, 2 Cranch, 258-9 ; Wharton’s Dig. 569; Case v. Wildridge, 4 Ind. 51-3; 4 Ohio St. 385; Gardner v. Collins, 2 Pet. 93; Brower v. Hunt, 18 Ohio St. 341; Priestman v. U. S., 4 Dallas, 28-30; Woodherry v. Berry, 18 Ohio St. 456; Wilcox v. Nolze, 34 Ohio St. 523; Broom’s Legal Maxims, 132. These bequests come under the act for the testator'died in less than two months after making liis will, lie left living a legal representative of his, son in the person of his grandson, Joseuh Frank Patton.

      As'to the-constitutional objection to this act, we have simply to say that the right to make a will is a legislative on¿; Blackstofie’s Com: 12.
    To whom does this property belong ?
    1st. "We claim confidently that this estate, both real and ■ personal, is now property undisposed of by the will of Josepli' Dl Patton.
    2d. That it became intestate property at the time of the death of Joseph Frank Patton without children, and not. before.
    If these propositions be true, no doubt can arise as to the ownership of the property, as the brothers and sisters of the testator take it as his only heirs at law.
    Let us see if it be true. ’ The testator by his will creates a life estate in his widow in both his real and personal property. That a life estate can be created in personal property,is now, in view of the law, no longer doubted, and the doctrine is clearly sustained in the following cases : Gillespie v. Miller, 5 Johns. Ch. 21; Washb. Real Prop. 725; King v. Beck, 15 Ohio, 559; Pruden v. Pruden, 14 Ohio St. 251; Hustead v. Craighead, 23 Ohio St. 198. After the death of his widow he creates a life estate in his grandson, Joseph Frank Patton, in both the real and personal property.
    The death of Frank Patton without child or children, is a contingency unprovided for in the will. It is true it was provided for, but the provision being void, it is the same in law as being unprovided for, and then, at that time, this property becomes intestate property, and descends to the heirs at law of the testator, for it car.’ t lie claimed that this property was intestate property at any time during the life of Joseph Frank Patton. King v. Beck, 15 Ohio, 559; Bunnell v. Evans, 26 Ohio St. 309; Bates v. Zinsmeister, 29 Ohio St. 465.
    As to the powér to sell the real estate, see Lessees of Ward v. Barrows, 2 Ohio, 252 ; 1 Williams on Ex’rs. 586, 588; Holt v. Lamb, 17 Ohio St. 374.

      James II. Thompson and C. U. Collins, for the Boards of Missions.

      S. F. Steel for R. C. Barrett, the executor of Joseph D. Patton:
    The language of the will is imperative: “I direct my said executor o.r his successor to sell all my real estate,” etc. The only discretion given, is as to the manner and terms of sale. The clear purpose is to convert the real estate into money, and to blend it with the other personal estate for further administration, and after the payment of costs and expenses of such administration, to distribute it as directed. Even if the bequests be void, the clear intention of the testator that his whole estate should be treated as personalty for purposes of distribution, remains unchanged. Courts of equity give to the estate that quality which the executor has impressed upon it. Collier v. Collier, 3 Ohio St. 369; Ferguson v. Stuart, 14 Ohio, 140; Collier v. Grimesey, 36 Ohio St. 17; Phelps v. Pond, 23 N. Y. 69; Gedges v. Western Bap. Theol. Inst., 13 B. Mon. 530; Rumsey v. Durham, 5 Ind. 71; Stagg v. Jackson, 1 N. Y. 206-12.
    An absolute direction to sell, effects a con\rersion, though the intended beneficiary (a charity) be incompetent to take ; the Avill having been executed Avithin one month of testator’s death. Evans’ Appeal, 63 Penn. St. 183. All the provisions of the Avill taken together sIioav that the testator intended the whole estate to be distributed as personalty, if Prank should die leaving no child or children. The limitation upon the interest of his widow, and upon the estate of Frank, and the imperative direction to sell the real estate and commingle the proceeds with the personalty for administration, if Frank should die childless, furnish the evidence of this intention.
    Ha/rrison, Olds de Marsh and Sloane & Newby, for Augusta A. Curtis, Jennie Hill and the administrator of Joseph F. Patton:
    The personal property passed to the administrator of Joseph F. Patton to be distributed to his next of kin. Gilpin and wife v. Williams, 25 Ohio St. 283; White v. Howard, 46 N. Y. 144; Lessee of Thompson v. Hoop, 6 Ohio St. 481; Crain v. Doty, 1 Ohio St. 279; Pence v. Pence, 11 Ohio St. 290; Piatt v. Sinton, 37 Ohio St. 353; and the other authorities heretofore referred to.
    As to the real estate of the testator, we contend that it was stamped with the character of personalty 't>3T the absolute direction to the executor to sell and convert, and transmute into money, and that the right to the proceeds of its sale passed as personal property to the administrator of Joseph Frank Patton to be distributed to his next of kin. Nothing is better settled in this State than that land directed by a will to be sold and converted into money is treated as personal estate, and governed by the statute of distribution. Ferguson v. Stuart's Executors, 14 Ohio, 140; Collier v. Collier's Executors, 3 Ohio St. 369, 374; Richey v. Johnson, 30 Ohio St. 288; Collier v. Grimesey, 38 Ohio St. 176.
   McIlvaine, J.

As to the claim of the Home and Foreign Missions : It was, beyond doubt, the intention of the testator, that in case of the death of his widow and the death of his grandson, leaving no child or children, the real estate in dis-. pute should Ire sold by his executor, and the proceeds equally divided between the Missions. Rut, the testator dying within a year from the execution of the will, the contingent bequest to the Missions fell within the condemnatory terms of the proviso in section 1 of the "Wills Act of March. 30th, 1874, amending the act of 1852. The Section reads as follows :

“Section 1. That any person of full age and sound memory, having an interest in lands, tenements, or hereditaments, or any annuity or rent charged upon or issuing out of the same, or any goods, chattels, rights, credits, choses in action or possession, or any other property of any description whatever, may give and devise the same to any person, by last will and testament, lawfully executed; subject, nevertheless, to the rights of creditors, and to the provisions of this act, and of an act entitled An act to restrain the entailment of real estateProvided, that if such testator or testatrix shall die, leaving issue of his or her body living, or their legal representatives, or shall leave an adopted child or children living or their legal representatives, and said will give, devise, or bequeath such estate, in whole or in part, to any benevolent, religious, educational or charitable purpose, or to any person in trust for any of such purposes, whether such trust appears upon the face of the instrument making such gift, devise, or bequest or not, to the state of Ohio, or any state or country, to any county, township, city, incorporated village, or other corporation or association, in this or any other State or country, in such case said last will, as to such gift, devise, or bequest, shall be invalid and void, unless such will (or if contained in a codicil thereto, then such codicil) shall have been duly executed according to law at least twelve calendar months prior to the decease of such testator or testatrix.”

In behalf of the Missionary Boards it is contended that this proviso does not apply to a bequest contingent upon the extinction of lineal descendants. This contention is based on the assumption that lineal heirs alone may object to such beqnest, as thq proviso was for their protection alone. But this assumption is not authorized by the statute. We can see no reason why any one interested in the descent and distribution of the estate may not assert the invalidity of the bequest. True, the invalidity of the bequest depends on the existence of lineal descendants, natural or adopted, at the death of the testator; but no use of the void bequest is preserved to lineal descendants. It remains in the general estate, and if not otherwise disposed of in the will, becomes intestate property.. The true character of such bequest, whether void or valid, is determined by the state of facts existing at the testator’s death, and not by any subsequent contingency.

A labored argument has also been submitted by counsel for the Missionáry Board to show that the proviso in ques-: tion is unconstitutional and void. The postulate of this argument seems to be that the right of the citizen to dispose of his property by will is a constitutional right which the legislature cannot destroy or abridge. Is this proposition true % Testamentary power is not referred to in terms, either in. ■ the constitution of the state or of the United States. It is contended that it is recognized by implication in section 1 of the Bill of Rights in the State Constitution, which reads :

Section 1. All men are by nature free and independent, and have certain inalienable rights, among which are those, of enjoying and defending life and. liberty, acquiring, possessing and protecting property, and seeking and obtaining happiness and safety,”

We concede that the right to acquire property implies the right to dispose of it. But the inalienable rights here declared, as well as those implied, are possessed by living, not by dead men. A disposition by will does not take effect during the testator’s life, but operates only after his-death.

While the right of testamentary disposition may be, as Mr. Bedfield, in his work on wills, says, instinctive, it nevertheless depends solely on municipal law, and has never been regarded asa natural or inalienable right. It has always been subject to the control of legislative power, and such power is' not limited in this State by constitutional provision. Hence, it follows that the contingent bequests to the Home and Foreign Missions, contained in the will of Joseph D. Patton, who died within a year after the will was made, leaving the legal representative of a son surviving him, became absolutely void immediately at and after the death of the testator.

What, then, became of the title to the property in controversy, upon the death of the testator ?

Under the will, an estate for the life of the widow vested in her, and an estate in remainder, after the death of the widow, vested in the grandson, Joseph Frank, for his life. Kemainder over, in fee, to the child or children of Joseph Frank, if he should die leaving a child or children. There was no such child or children” in being. And no further disposition was made of the property by the will. True, the terms of the devise to Joseph Frank were ample to pass, subject to the life estate of the widow, a fee simple remainder, but construed in connection with other parts of the will, it is quite clear that the testator intended the estate devised to the grandson to be for his life only.

. It seems clear, therefore, that upon the death of the testator the whole estate, subject to the life estates of the widow and the grandson, vested by descent in the heir of the testator, subject to be divested in favor of the child or children of Joseph Frank Patton, if he should die leaving any.

Joseph Frank Patton, therefor, sole heir of the testator, never having had a child or children, died seized of this estate in fee simple, and intestate.

The next question in the case is raised by the executor of Joseph D. Patton’s will, who claims the right under the will to sell the estate and administer upon the proceeds. Augusta A. Curtis and Jennie Hill, sisters of the mother of Joseph Frank Patton, as next of kin to the deceased Joseph Frank, claim that by the direction to sell contained in the will, the estate is to be regarded as converted into money, and passes to the next of kin as personalty. These claims may be disposed of together. The controlling question is: Did the testator intend that upon the death of Joseph Frank, without leaving a child or children, this property should be converted into money, although the bequests to the Mission Boards should be invalid and void ? It is not at all probable that the testator contemplated such contingency; but, on the other hand, we are satisfied that the sole reason of the testator in directing the sale of the land was for the purpose of dividing the proceeds, as money, between the two Boards of Mission. ■ If this be so, tl;e power of sale fell with the bequests. The direction in the Avill is, that “ If my said grandson, Joseph Frank Patton, die leaAnng no child or children, then I direct my said Executor or his successor, to sell all my real estate .... and the proceeds of such sale .... I direct to be paid share and share alike to the Board of Home Missions . . . and to the Board of Foreign Missions.” True, the contingency happened upon Avhich the testator intended the poAver to sell should accrue, and upon the happening of the same contingency the direction to pay the proceeds share and share alike to Mission Boards was to become absolute, according to the intention of the testator. But, by his death within a year from the making of the will, the directing as to the payment of the proceeds become inoperative and void, therefore the direction to sell also become inoperative and void.

The law on this point is well stated in 1 Williams on Executors, 588, as follows:

“ The principle seems to be, that where the purpose of the testator still requires a sale of the whole land, and there is only a partial disposition of the produce, the surplus belongs to the heir, as money and not land, and will go to his personal representative. But where no purpose of the divisor demands, in the events that have happened, that the whole land shall be converted into money, then the heir shall take the resulting property as land, and it shall descend as such to his heir. Thus, where a divisor directs his land to be sold and the produce divided between A. and 13., the obvious purppse of the testator is, that there shall be a sale for the convenience of division ; and if A. dies in the lifetime of the divisor, and the heir stands in his place, the purpose of the testator still applies to the case. Therefore the heir will take the share of A. as money and not as land. But if A. and B. both die in the lifetime of the testator, and the whole interest in the land descends to the heir, the purpose of the testator, that there shall be a sale for the convenience of division, has no application, and the heir will take the whole interest as land.”

This brings us to the conclusion that the real estate of which the intestate, Joseph Frank Patton, died seized, the same being ancestral property, passed, at his death, to the brothers and sisters, and their representatives, of Joseph T). Patton, from whom the estate came, in accordance with the provisions of sections 415Revised Statutes, prescribing the course of descent of ancestral property.

And that the personal estate of which the intestate died possessed, be distributed to Augusta A. Curtis and Jennie Hill, sisters of intestate’s mother, and next of kin to said intestate, in accordance with the provisions of section 4163 of Revised Statutes. Decree accordingly, and cause remanded to the court of common pleas for partition, in accordance with the prayer of the petition.

Judgment accordingly.


source: Caselaw Access Project

author: Johnson, C. J.

license: Public Domain

text:
    Gardner v. The National City Bank.
    A. drew his negotiable draft in favor of O., a banker, on B. for the • exact amount duo him, for the purpose of having O. discount thd same, which he did, in the usual course of business, and paid to A., the proceeds.
    While the draft was in transit to B. for acceptance and payment, he,' without any knowledge of its existence; remitted the amount due, by certified check on his banker to A., who received and converted it to his own use, by depositing it to his credit with his banker, as, cash, together with his other deposits, subject to his checks.
    ■On presentation of the draft, B. refused to accept or pay, and it was re- ■ turned to.O, A. then made a general assignment, having a bank balance to his credit greater than the amount of his draft. This check was' forwarded by his hanker for payment, and two days after the assignment; was paid by the bank certifying the same.

      Held: -1. That as between A. and C., and under these circumstances C. ac-„ , quired, by equitable assignment, the right to the amount then in B.’s . . hands.
    2. That B. having remitted to A. the amount, by check, before notice of the draft, which was afterwards paid, was released from the obliga- • - tion to accept or pay, but the check in the hands of A., or his banker,' or its proceeds when collected, belonged in equity to O. in the absence of any intervening right, and he may, in an action- for -equitable relief against the parties, have the same applied to the payment of his draft.
    8. The conversion by At-of this check, by obtaining a credit therefor _■ on his account in bank, did not defeat this right to the proceeds of the check when collected, there being a sufficient balance out of which to pay the same, and no intervening right of the bank or others having 1 ' attached. ' ' 1
    . Error to the District Court of Cuyahoga county. ' !
    November 8th, 1877, Harvey & Sons, of Cleveland, Ohio, drew their negotiable bill or draft on Brookbank & Co., of Pennsylvania, for the sum of $353.20, that being the exact amount due from them to the drawers, in favor of the City National Bank of Cleveland, for the purpose of discount, and on the same or, the next day, the bank discounted the draft,. placed the proceeds to the credit of Harvey & Sons; who soon thereafter checked the same out. The bank forwarded this draft to the’draweés for "acceptance and payment on the 10th, and on the 16th it was returned to them unaccepted and unpaid for the reason that before Brookbank & Co. knew of tills draft, they had remitted the amount by a certified check on, their banker in Pennsylvania to Ilarvey & Sons, who, instead, of depositing it with the City National Bank to be collected and applied in payment of their dishonored draft, converted it. to their own use, by depositing it with the Merchants’ National Bank of Cleveland, with whom they had an ac-, count, and received a credit therefor, on account, on the. 12th of November. On the 13th the Merchants’ Bank forwarded this check through its Philadelphia correspondent to the .bank on which it was drawn, and on the 17th it was presented., ancl paid.
    Before depositing this check on the 12th, Harvey & Son’s had a balance due them at the Merchants’ National Bank of $367.96. On that day they deposited $472.95, including this olieck, $353.20, and checked out $633.38, leaving a balance at the close of business of $203.88. On the 13th they deposited $1,981.50 and $353.03, and checked out $2,160, leaving a balance of $378.41. On the 14th they deposited $300, and drew out $64.26, leaving a balance of $614.15, and on the 15th they deposited $241.50, and drew out nothing, so that, on that day, there was a balance of $865.65 due them, including the credit for this check.
    On that day with this balance to their credit, they made a general assignment for the benefit of their creditors.
    The question presented is, whether the assignees of Harvey & Sons, who claim under the deed .of assignment, or- the City National Bank, who claim by way of equitable assignment of the fund by reakon of the draft, arc entitled to the amount of the balance in the Merchants National Bank.
    This question arises in an action for equitable relief broughj. by the City National Bank in which the plaintiffs in error as^as. signees, and the Merchants’ National Bank were defendants, in which the relief sought was to compel the latter bank to pay to them the amount of said draft and interest, out of the balance in their hands, on the day of the assignment.
    On appeal,- the District Court granted the relief prayed for and the assignees now ask a reversal of that judgment on two grounds:

      1. That the City National Rank as the holders and owners of this draft acquired no right to the fund against which it was drawn, either in the hands of the drawees, Brookbank & Co., nor against the Merchants’ National Bank where it was deposited by the drawers:
    2. But if such draft did operate as an equitable assignment of that fund, when deposited in the Merchants’ National Bank, yet as only $203.88 was left in bank at the close of business on that day, the judgment could only be had against the Merchants National Bank for this balance, although there was a balance more than equal to the draft when the drawers made their assignment.

      Ranney c& Ranney, for plaintiff in error :
    The authorities most clearly sustain the proposition “ That a bill or draft payable generally, and not specifying or referring to any particular fund, does not operate as an equitable assignment, and whether it is or not accepted by the'drawee.” Watson v. Duke of Wellington, 1 Russ. & Myhi., 602; Phillips v. Stagg, 2 Edw., 108; Mandeville v. Welch, 5, Wheat., 277; Kimball v. Donald, 20 Mo., 577; Sands v. Matthews, 27 Ala., 399; Marine Ins. Bank v. Janney, 3 Sand., 257; Luff v. Pope, 5 Hill, 413; 7 Hill, 577; Cowperthwaite v. Sheffield, 1 Sand. 416; 3 Comst. 243; Harris v. Clark, 3 Cornst. 93; Greenfield’s Estate, 12 Harris, 232; Hopkins v. Beebe, 2 Casey, 86.

      G/iswold <& Starr, for defendants in error:
    When a creditor draws on 1ns debtor in the form of a bill of exchange in favor of a third person for the exact sum of the indebtedness, such draft operates as an equitable assignment of the debt to the payee. Gibson v. Minet, 1 H. Blackstone, 569; Chitty on Bills, (12th ed.) 2; Story on Bills, § 13 ; Edwards on Bills (2d ed.) 43”; Daniels on Neg. Inst. §§ 17, 21; Mandeville v. Welch, 5 Wheaton, 227; Tiernan v. Jackson, 5 Peters, 580; Corser v. Craig, 1 Wash. C. C. 424; Wheatley v. Strobe, 12 Cal. 91; Buckner v. Sayre, 18 B. Monroe, 754.

      None of the cases cited by the plaintiffs in error affirm a contrary doctrine, and many of them expressly support our claim.
   Johnson, C. J.

The Merchants’ National Bank claims no interest in this fund. As between the assignees in insolvency, who claim under the deed of assignment from Harvey & Sons, dated November loth, and the City National Bank, who claim as owners and payees of the draft of November 8th, it is an indifferent party seeking only to be protected against a double payment.

The assignees of Harvey & Sons stand in their shoes, and have only their rights in the premises.

This draft is negotiable in form and was for the whole fund in the hands of Brookbank & Co. It would doubtless have been accepted and paid, but it appears that before it reached the drawees and before they knew of its existence, they remitted the same debt by a certified check to Harvey & Sons. It is clear that this draft, though purchased in good faith, and in the usual course of business, did not as against the drawees, operate as an assignment either legal or equitable of the amount owing by them to Harvey & Sons, until presented and accepted, or at least until they had notice of its existence, so as to defeat the payment they had made before notice of its existence. Therefore, their remittance to Harvey & Sons by-certified check before notice of the draft, and the acceptance of that check as payment by Harvey & Sons, or its payment if not so accepted, was a satisfaction of the debt, and discharged the drawees from all obligation to accept or pay the same. Eor this reason the holders of the draft can make no claim against the drawees for non-acceptance or non-payment.

At the time the draft reached them, they did hot owe the drawers, and were then under no obligation to accept or pay.

If, however, as between Harvey & Sons'and the City National Bank, the latter acquired the right to the fund, by way of equitable assignment had it remained in the hands of the drawees, then it is conceded that the payment of the amount by the drawees to Harvey & Sous and its deposit by them in the Merchants National Bank to their credit, did not divest that right.

Had the Merchants’ National Bank without notice of this draft, applied this deposit to a debt due them, or to the payment of checks drawn against it, no claim against the bank could bo made. This bank, however, makes no claim to the fund. Its duty is to keep it safely and pay to whomsoever is entitled to receive it. The only rights to be adjudicated are those of the drawers and the payees of the draft.

As this draft was for the whole amount due from the drawees to the drawers, and was drawn for the purpose of enabling the drawers to discount the same, and to enable them to realize thereon in advance of actual payment by the drawees, we hold that it was the manifest intention of the drawers to transfer to the pajme and purchaser the absolute right to receive from the drawees that amount, and that as between the drawers and the payee and purchaser for value, it was an equitable assignment of the fund.

We are further of opinion that when the drawers received the certified checks of the drawees for the amount, it in equity belonged to the holder of the draft, and that their deposit of it to their own credit with their banker, was as against the holder of the draft, a wrongful conversion, aud did not defeat the right to follow the fund in the hands of the Merchants’ National Bank, it having acquired no right to the same, nor to the money collected thereon after the deed of assignment.

Strictly speaking, Brookbank & Co., the drawees, paid this money on the 17th, two days after the assignment; so that whether we regard the deposit of the check by Ilarvey & Sons, to their credit on the 12th as a conversion, or the date of its actual payment on the 17th as the time of such conversion, the result is the same, as in either event the right of the holder of the draft by way of equitable assignment is the same, no intervening right having attached.

We are- not called on to consider the rights of the payee against the drawer of such an unaccepted draft, nor how far it would operate against such drawer, when it was- for part only of the amount owing by the drawee, neither do we think the fact that it was negotiable makes any difference. The payee had the right to suppose that the drawers had that amount in the drawee’s hands, as in fact he liad, and on the faith of this, he purchased the draft in good faith in due course of business, and for a valuable consideration. As between drawer and payee, it is clear that it was the intention that the draft should operate, and did operate as an assignment of the fund in the drawee’s hands. 1. Daniels on Negotiable Inst, sec. 16, 17; Gibson v. Gooke, 20 Pick, 15; Story on Pills, sec. 13; Chitty on Bills, page 2, 12th Ed.; Whealthy v. Strober, 12 Cal. 92; Robbins v. Baem, 3 Maine, 315; Mandeville v. Welch, 5 Wheat. 277.

The cases cited and relied on by plaintiff in error do not militate against our conclusion.

They are either cases where other rights have intervened9 as in case of attachment of the proceeds in the drawee’s hands before acceptance, as in Kimball v. Donald, 20 Mo. 577, or of bills drawn against shipments, when the holders did not take an assignment of the bill of lading, and the contest was over the goods or their proceeds, subsequently coming to the possession of the drawee, as was the case of Cowperthwaite v. Sheffield, 3 N. Y. 243, or where the bill of exchange was for part of a general fund, or was drawn against an account current when the drawee before presentment or acceptance had made other disposition of the fund. In these cases courts have properly held no transfer of a sum named in the bill took place that would render the drawee liable.

But it is claimed that as the balance in the Merchants’ National Bank at the close of business on the 12th of November, after this check was deposited, was reduced to $203.88 that is the true amount for which judgment should have been rendered.

Por’the purposes of this case, the Merchants’ Bank was only bailee or agent of Harvey & Sons and their assignees.

When Harvey & Sons received this check, common honesty would have dictated that they turn it over to the payee of their draft. Their conversion of it to their own use gave them no right to the money it called for.

When it was actually paid on the 17th, the money belonged to the City National Bank, but was credited to Harvey & Sons, who had assigned two days before. The fact that they had a credit for it on the 12th, and had drawn out part of the amount on that day, which was made good by them the next, cannot, as between drawer and payee, change or defeat the right of the latter to the proceeds of the check collected on the 17th. *

Judgment affirmed.


author: Owen, J.

text:
    Gard v. Neff.
    1. Where an action is prosecuted, by A., guardian of B., on an instrument payable to “A., guardian of B.,” the fact that the ward becomes of age pending the suit affords no ground to abate it.

      2. The payment of interest, in advance, upon a promissory note is not of itself conclusive evidence of a contract to extend the time of payment of the note for the time for which interest may have been thus paid.
    Error to the District Court of Clarke county.
    On December 1, 1.871, Eli J. Gard as principal, and Benj. M. Gard as surety, gave to Adam Neff, the guardian of Edgar J. Barr, a minor, their promissory note of the following tenor:
    “ $500. One year after date, we, or either of ns promise to pay to Adam Neff, guardian of Eugene J. Barr, or order, the sum of five hundred dollars, with interest from date at the rate of 8 per cent, per annum. Value rec’d. Interest payable annually. .Dee. 1st, A.D. 1871.
    [Signed] ... • E. J. Gard,
    13. M. Gakd.”
    On May 17, 1875, Neff, 'being still such, guardian, commenced an action in the Court below upon this note, describing himself in'hiá petition as such guardian, alleging the minority of his ward, his own guardianship, the non-payment of the note, except certain credits, and praying judgment upon it. The defendant, Benj. M. Gard (now plaintiff in error), answered separately, alleging payment b3rthe principal, on the 29th day of Aug., 1873, of $50, and an agreement in consideration thereof, between the principal and the plaintiff to extend the time of payment of the note for two jrnars from September 1st, 1873, which payment and agreement he alleged to have been without his knowledge or consent, whereby he claimed to be discharged from liability on the note.
    Among other endorsements upon the note is the following: “ Aug. 29th, 1873, received interest in advance from the 1st day of Sept., 1873, two years in advance” — the amount of which the defendant alleges w.as the $50 mentioned above. The plaintiff joined issue by reply with these allegations of payment and agreement, and alleged fraud and misunderstanding in the making or procurement of the endorsement of Aug. 29th, 1873. Upon the plaintiff’s ward attaining his majority, the defendants filed, upon leave, a joint supplemental answer alleging this fact and praying that the action, for that reason, be dismissed. The plaintiff’s demurrer to this pleading was sustained and the defendants excepted. Upon the trial each party gave evidence tending to maintain the issues on his part, and at the conclusion of the testimony, after the general charge, the Court charged the jury (to which the defendants excepted) as follows:
    “ The payment of interest in advance is not of itself conclusive evidence of a contract to extend the time of the payment for the term for which interest may have been thus paid, ,but it is a strong circumstance to be looked to by the jury in determining the existence of the contract claimed.”

      The general charge is not in the record, nor does it appear that the above was all that was given upon the same subject.
    The verdict and judgments were for the plaintiff below.
    The sustaining of the demurrer to the supplemental answer and the giving of the above instruction, are the errors assigned as grounds of reversal of the judgment below.

      Keifer <& White, for plaintiff in error.

      George Spence and J. K. Mower, for defendant in error.
   Owen, J.

Was there error in holding, by sustaining the demurrer to the supplemental answer, that the coming to his majority by the ward of Neff was no ground for dismissing the action. The propositions contended for by the plaintiff iu error are, that the note in suit was a contract for the ward ; that the proceeds belonged to him; that the beneficial interest was his; that Neff is named in the note and the suit because of the disability of the ward to contract or sue ; that upon the ward coming to his majority, the disability and the guardianship at once determined, and with them the right of the plaintiff further to prosecute the action.

We are not called upon to consider the respective relations which the guardian and ward sustained to this note or its proceeds, nor to consider the power of the guardian to bind his ward by the act of taking the note, or of bringing suit upon it, for if he had no such power, there clearly was no error, and if the position contended for is sound, the form of, and parties to, the action were abundantly provided for by sections 25 and 27 of the Code of Civil Procedure, S. & C. Stats. 951 and 953, which provided that every action must be prosecuted in the name of the real party in interest, except that a person with whom or in whose name a contract is made for the benefit of a/nother * * may bring an action without joining with him the person for whose benefit it is prosecuted. The promise of the defendants was to pay Neff, who was named as guardian; the action was by Neff as plaintiff, although described as guardian. His right to “prosecute” the action was clear, and no error intervened in the refusal to dismiss the action or order its abatement upon the ward reaching his majority.

II. Did the Court err in charging the jury that “ The payment of interest in advance is not of itself conclusive evidence of a contract, to extend the time of the payment for the time for which interest may have been thus paid?”

The plaintiff in error has marked for attack a single fragment of the charge. If the instruction complained of is erroneous, it is so because payment of interest in advance is of itself conclusive evidence of a contract to extend the time of payment. That such payment of interest implies such a contract, is prima facie evidence of it, is sufficient evidence of it, are propositions supported by numerous cases cited, and we have no disposition to question their entire soundness. But no case is presented going beyond this.

Payment is not itself a contract. It presupposes the existence of a contract to be in part performed by payment. Upon the principle contended for, the mere physical fact of payment of interest in advance — of such part performance- — -would conclude all controversy as to the contract under which it was made, and exclude every inquiry concerning fraud, mistake, misunderstanding, qualifying conditions, or other circumstance affecting the integrity or force of the contract itself. This would contravene an elementary principle.

The Court was right.

Judgment affirmed.


author: Follett, J.

text:
    Calvin v. Bruen
    1. A person is liable for his failure to deliver to the proper parties the money paid him for a note and mortgage taken by him as sheriff during his term of office, for the deferred payment of purchase money of land sold on partition, although no special order of distribution thereof had been made by the court, and the money was paid him after the expiration of his term of office.
    2. Such liability is not discharged by paying the money to the attorney who procured the partition sale, and who was not specially authorized to receive the same, either by the parties entitled thereto, or by order of court.

      3. Such liability may be enforced by tbe parties in interest in a joint action against such person, when no objection is made for misjoinder ; nor will the fact that the person sued is designated as “ late Sheriff of H. county,” make aDy difference.
    Error to the District Court of Hamilton county.
    The original petition, filed in the court of common pleas, alleged that Mary Bruen and her co-defendants in error were tenants in common of a tract of land of which she sought partition, and that such proceedings were had thereon that the court found Mary Bruen the owner of one-seventh, and John McAuley, William McAuley, James McAuley, Margaret Ferris and Jane E. McAuley, one-seventh each; that the plaintiff in error, who was then sheriff of Hamilton county, was ordered, by proceeding had in said cause, to sell the real estate according to law; that he sold the premises to Azariah Compton, and that the sale was confirmed, and the sheriff, among other things, was ordered to take said Compton’s note for one-third of the purchase money, to-wit, $1,047.90, payable in two years from the date of sale with interest; but Compton gave this note to the defendant Calvin, as sheriff of said county, instead of to the plaintiffs, which money, the petition says, was due and owing to the plaintiffs as and for their interest in said lands ; that on the 29th of January, 1867, Compton paid said note to the defendant as sheriff of said county, to-wit, $1,174.92 and the note was thereupon surrendered, without the conseno of the plaintiffs, to the maker ; that there is now due to them from said Calvin, as sheriff, the sum of $1,174.92, with interest from January 29th, 1867, being the amount received by him as above stated, for which they ask judgment.
    Calvin answered that the only orders of distribution ever made in the case in said petition described, are three, respectively made and entered November 14, 1864; December 12, 1864; and February 16,1865, and he averred that he had fully complied with and obeyed, all and singular, the provisions of said orders, and in obedience thereto that he had paid all the moneys received by him from the proceeds of said sale to said O. & E. T. Brown, the attorneys therein named, and holds their receipts therefor. ,

      The entry of November 14,1864, finds the respective interests of said parties, and it was therefore ordered, that, by the oaths of three named commissioners, partition be made of said premises in said proportions.
    The entry of December 12th, 1864, finds, upon the return of the sheriff, and the report of the commissioners, that the same are correct, and in conformity with law, approves and confirms the same, and neither of said parties electing to take the said premises at the valuation, orders that the premises be sold at public sale, by the sheriff of said county, according to law, and that he return his proceedings in the premises to this Court without delay.
    The entry of February 16th, 1865, is to the effect that the said Isaac and Mary Bruen, appeared by O. & E. T. Brown, their attorneys, and on their motion the Court approves the sale ; and it appearing that the purchaser desires to pay twotliirds of the purchase money in cash, and that the defendants are willing to receive the same, it is. ordered that the sheriff receive the said two-thirds of ’ said purchase money, and take a note secured by mortgage for the one third payment in two years, with six per cent, interest, and the sheriff was ordered to convey the premises to the purchaser in fee simple.

      “ And it is further ordered that the said sheriff out of the moneys in his hands, pay, first, the costs of this suit, taxed at $--, including a counsel fee to O. & E. T. Brown of $300, one-half of said fee to be paid by plaintiff; and the residue of said moneys to be paid to said attorneys to be distributed to the said parties in the proportion set forth in the former order of this Court; and that said attorneys file the receipts for said moneys paid to said parties in this cause.”
    Thereupon follow two receipts, both signed by O. & E. T. Brown, one dated February 20th, 1865, from R. Calvin, sheriff, for $1,653.12, being the amount received by said sheriff in the case, less the costs in said action, and being the sum ordered by the Court to be paid O. & E. T. Brown, attorneys for the several parties in said cause. The second receipt is dated January 30th, 1867, from R. Calvin, sheriff, for $1,175.04, being the amount received by said R. Calvin on the note of the purchaser, including interest, and due the several distributees in the case.
    The defendants in error filed a general demurrer to such answer, which was sustained, and j udgment rendered in favor of the defendants in error against the plaintiff in error for $1,793.89. To reverse this judgment a petition in error was filed in the district court setting up as error that the court of common pleas erred in sustaining the demurrer of the defendants in error to the answer of the plaintiff in error, and in entering judgment for said defendants in error. The district court affirmed the judgment of the common pleas, and to reverse this judgment the present petition in error is filed.
    Hoadly, Johnson & Golston for plaintiff in error.

      O. W. Go wan for defendant in error.
   Follett, J.

Calvin’s term of office as sheriff expired January 2d, 1867, and he had retained the note and mortgage in his possession, and received the money paid thereon January 29th, 1867.

The statute then in force — S. & C., p. 897, sec. 10 — read: “And the said money dr securities shall be distributed and paid by order of said court to and amongst the several parties entitled to receive the same, in lieu of their respective parts and proportions of said real estate or estates, according to their just rights and proportions.” It is not claimed that any other party had • any right to or interest in this money or securities. And the money or securities have not been distributed and paid to the defendants in error, who were found to be the parties entitled to receive the same. It is seen by the answer of Calvin that the court did not order this money or securities to be paid to O. & E. T. Brown ; and as attorneys they had no authority to receive any part of the last payment.' The services required of them had ceased, and by order of the Court they had been paid out of other funds. Their receipt from Calvin, on January 30th, 1867, of money paid from them to Calvin, was no distribution or payment to the defendants in error, who were the parties entitled to receive the proceeds of the land thus sold in partition.

The original action was by defendants in error against Richard Calvin, late sheriff of Hamilton County, Ohio, to the form of which action no objection was made in the court below, and now it is too late. The omission of a specific order of court to pay this money or hand the securities to the proper parties, was fully provided for by the statute directing the same to “ be distributed and paid” * * * “ to and amongst the several parties entitled to receive the same.”

The case of Preston v. Compton, 30 Ohio St. 299, is not like this casé. The defendants in error can stand npon their own rights, and they can hold the plaintiff in error liable for the money so received for them by him, whether he obtained it rightfully or wrongfully as sheriff, or after his term of office expired.

The case of Brobst v. Skillen, 16 Ohio St. 382, sustains this conclusion.

There was no error in the district court, and the judgment is affirmed, with costs.


author: Okey, <1.

text:
    Lovell v. Wentworth.
    1. If no reply is filed to an answer of new matter constituting a defense but the cause is tried without objection as though such allegations had been denied, a demand for judgment on the pleadings, after each party has introduced his evidence, is too late,
    2. Where a statement of facts alleged to have occurred a year previously, is entered in a memorandum book, and the person making the entry brings suit involving the truth of the matters so stated, and while the suit is pending the book becoming worn, he copies the statement into another book, but is unable, except as aided by the writing, to testify to material matters therein, he should not be permitted, if objection be made, to use such copy while testifying as a witness in the cause.
    . Error to the District Court of Hamilton county.
    Wentworth claimed, in an action in the court of common pleas against Lovell, commenced in 1875, that be loaned money to Lovell and took his promissory notes therefor, payable on demand, as follows: September,1868, $225; October, 1868, $225; November, 186S, $125 ; October, 1869, $220 ; February, 1870, $200; December, 1871, $200; and that in February, 1872, the notes of November, 1868, and December, 1871, were destroyed. an additional sum of money was loaned, and a note for $458 was taken as representing the two notes and the additional sum of money; that later, in 1872, having the five notes in his possession, he applied to Lovell for payment of the notes of September, J868, and February, 1870, and left the same with him in order that he might calculate the interest thereon ; that Lovell has never returned the two notes, nor paid them, but has paid the other three notes, that is, the notes of October, 186S, October, 1869, and February, 1872. The action is to recover the amount of the notes of September, 1868, and February, 1870, of which, Wentworth claims, Lovell improperly retains possession.
    Lovell admits in his answer that he received moneys from Wentworth, and gave his notes therefor, “ all of which have been fully paid by this defendant to said plaintiff.” ILe claimed, in his testimony, that the notes for which a recovery is sought never had an existence, and no such sums of money were received; that four notes were given for money so loaned, two of which — not the notes stated by Wentworth — were consolidated, leaving three instead of five notes, all of which were paid.
    Wentworth testified that in 1873 he wrote in a memorandum book a statement of the amounts loaned to Lovell, and the dates of the loans ; that the dates and amounts of the notes were the same as in the statement, and were as hereinbefore set forth, not having the notes — certainly not all of them — in his possession at the time; that in 1876, since the commencement of this suit, the memorandum book being much worn, he copied the statement into a new memorandum book, which he produced. He said: “ I cannot remember the notes, dates or amounts without referring to these lead pencil memoranda.” Lovell objected tothe use of the memoranda by Wentworth while so testifying, but the objection was overruled, and Wentworth was permitted to and* did use the book for the purpose, as was stated, of refreshing his memory, and the book was offered in evidence, and Lovell excepted to the rulings of the Court on the subject.
    Wentworth moved the .Court for judgment on the pleadings, no reply having been filed to the alleged answer of payment ; but the cause had been tried and finally submitted to the jury, as though such allegation of payment had been denied, and the Court overruled the motion for judgment on the ¡headings.
    Yerdict and judgment for $637.27. Affirmance in the District Court, after remittitur of $13.50, by reason of error in calculation of interest. This petition in error is filed for the reversal as well of the original judgment as the judgment of affirmance.

      Mallon Coffee, for plaintiff in error.

      E. B. J. Molony and O. W. Gerard, for defendant in error.
   Okey, <1.

The Court properly overruled the motion for judgment on the pleadings. Assuming but not deciding that a reply was proper, the case was tried, without objection, as though the allegation of payment had been denied. When the evidence was all in, it was too late to make the objection. Woodward v. Sloan, 27 Ohio St. 592.

The cases relating to the fight of a witness to examine, on the witness stand, memoranda for the purpose of refreshing his memory, have been so fully considered in text-books (Starkie’s Ev. 10th Am. ed. 177; 2 Phiilipps’ Ev. 5th Am. ed. 767, 916*; Roscoe’s N. P. Ev. 14th ed. 176; Taylor’s Ev. §§ 1264, 1265 ; 1 Greenleaf’s Ev. § 438 ; 1 Whart. Ev. § 523; Abbott's Tr. Ev. 320). especially in the notes of the American editors of Starkie and Phiilipps (and see 14 So. Car. 444; 70 Ala. 63 ,; 15 Am. Dec. 194, note), that we deem it unnecessary to review them in this opinion. While the present tendency, perhaps, is to grant rather than deny to the witness the privilege of examining such memoranda, and while the tendency is also to concede to the judge presiding at the trial considerable discretion in this respect, there being no fixed or definite rules to guide him, still, we think it safe to say, that under the most liberal rule recognized in any well considered case, the plaintiff below, Wentworth, should not have been permitted to use the memorandum book while testifying as a witness. The entries in the original book were all made in 1873, and all at the same time. They cover transactions from 1868 to 1872, and the last transaction referred to therein occurred more than a year before the memorandum was made. Nor is this all. The memorandum produced in court was a copy of the original, made in 1876, since this suit was commenced; and it is fair to say the copy was made for use in this cause. The original, though worn, might have been preserved. Wentworth admitted that he could not “ remember the notes, dates or amounts without referring to the lead pencil memoranda.” Hence this was not the use of a paper merely to refresh the memory, so that, the memory being refreshed, the witness might be enabled to testify to the fact sought to be established, independently of the paper; and, indeed, to allow a paper so made to be thus used, is to permit the introduction of evidence which is not only dangerous in its character, but unwarranted by reason or authority. - We need not express an opinion as to the right to refer to the original, if that had been produced, nor do we mean to deny that, under some circumstances, a copy may be properly examined to refresh the memory. As a general rule, it must appear, where the original memorandum is used, that the person preparing it made it “ at a time when he had a distinct recollection of the facts, and cmte litem moiam ” (Powell’s Ev. 4th ed. 363); and undoubtedly the latter condition is equally indispensable where the memorandum produced is a copy. We hold that, under the circumstances, Wentworth had no right to use the memorandum produced in this case for any purpose, a.nd that the objection of Lovell’s counsel ought to have been sustained.

Judgment reversed.:


text:
    Hudson v. Wolcott.

      HOld: 1. In an action "by an indorsee against his indorser, the question whether a blank indorsement was made in the usual course of trade, for the purpose of transferring title, and as evidence of a contract of indorsement, is issuable; and under such issue the indorser may prove that his name was written on the back of the instrument at a different time and for a different purpose; also, he may prove, as part of the res gesta, the declarations and conversation of the parties at the time of the transfer.
    2. In the transfer of an instrument by indorsement, demand and notiee may be waived-, and such waiver may be shown by the circumstances. Where, at the time of the transfer of a past due note, both indprser and indorsee are informed by the maker that ho is not then able, on demand, to pay it, but thinks he may be able to pay it in thirty days, and the note is then delivered, it will be presumed the parties acquiesced in the delay, and that demand and notice of nonpayment were waived.
    Error to the District Court of Cuyahoga county.
    The original action was brought by Hudson against Wolcott as maker, and Burt as indorser, of a promissory note executed by Wolcott to one Bennett, on the 28th of March, 1873,'for $291.50, payable nine months after date.
    The note was indorsed as follows:
    Pay to A. S. Hudson, E. Bennett, D. A. Burt.
    The plaintiff, in his petition, averred the transfer and indorsement of the note to him by Burt after maturity, and due demand of payment from the maker, and notice of non-payment to Burt.
    Burt, by his answer, denied demand and notice, and further set forth:

      “ That before said note became due and payable, said E. Bennett,, the payee thereof, indorsed said note in blank, and delivered the same to this defendant, and this defendant indorsed ana delivered the same to the Society for Savings for collection only. That he never placed his name on the back of said note with the intention of becoming liable on the same in any manner whatever. That on or about the 28th day of May, 1875, he sold and delivered said note to said plaintiff, and it was then expressly agreed and understood by and between plaintiff and this defendant, that this defendant should not indorse said note or be liable thereon as indorser. That this defendant at that time intended to erase his name from said note, which he neglected to do.”
    On the trial the plaintiff offered testimony tending to prove that the note was transferred to him by Burt upon the faith and credit of his indorsement; that defendant, during the negotiations, pointed to his signature on the back of the note, saying, “ This is the security I propose to give you.” And further that the note was transferred to him about sixteen months after its maturity in part payment of a pre-existing claim; that the maker at the time was known to bo insolvent, but having been a schoolmate of plaintiff, it was thought the latter could probably induce him to pay it; that plaintiff refused to take the note until he could see the maker, and thereupon plaintiff and defendant went to Ravenna, where the maker was, on the 27th day of May, 1875, and the plaintiff, in the absence of the defendant, spoke to Wolcott about the note, who said the note was all right, but he could not pay it then, but thought he could pay it within thirty days. This conversation was reported by plaintiff to Burt, and thereupon the note was delivered to plaintiff in part payment of his claim against Burt. About the 6th of July following plaintiff demanded payment of the maker who said he could not pay it then, but thought he could pay it in sixty days. The next day plaintiff informed Burt what Wolcott had said, who replied that the time might as well be given him.
    And the defendant Burt, over the objection of plaintiff, offered testimony fending to prove that the plaintiff agreed at the time of the transfer of the note to him, and so stated after-wards, that he agreed to take it at his own risk and was not to rely on'the defendant Bnrt as indorser. The defendant Burt also gave in evidence, over the objections of the plaintiff, that defendant Burt’s name had been written on the note when it became due for collection only ; that the note was left by Burt with the Society for Savings in Cleveland, with his name indorsed thereon for that purpose only, and when Burt handed over the note to plaintiff, he intended to erase his name from the note, but forgot to do so.
    Verdict and judgment were rendered for the defendant Burt, which were afterward affirmed by the District Court.

      Hutchins, Stewart & Johnson for plaintiff in error :
    As to the admissibility of the evidence see Doolittle v. Ferry, 20 Kansas, 230; Fassin v. Hubbard, 55 N. Y. 465; Woodward v. Foster, 18 Grat. 200; Lee v. Pile, 37 Ind. 107; Campbell v. Robbins, 29 Ind. 271.
    As to Whether there was error in the charge of the Court, see Boyd v. Bank, 32 Ohio St. 526; French v. Jarvis, 29 Conn. 347; Gray v. Bell, 3 Rich. (S. C.) 74.

      P. H. Kaiser for defendant in error:
    As to the admissibility of evidence, see Douglass v. Waddle, 1 Ohio 422; Hays v. May, Wright's R. 80; Bright v. Carpenter, 9 Ohio, 139; Champion v. Griffith, 13 Ohio, 228; Greenough v. Smead, 3 Ohio St. 419; Seymour v. Lehman, 10 Ohio St. 286; 15 Ohio St. 519; Morris v. Faurot, 21 Ohio St. 155; Oldham v. Broom, 28 Ohio St. 41, 52; Dye v. Scott, 35 Ohio St. 194, 198; 11 Conn. 212; 5 Serg. & R. 362; 6 Monr. 542.
    As to the charge of the Court, see 2 Cin. Sup. Ct. Rep. 475; 1 Parsons on N. & B. 367; Bolen v. State, 26 Ohio St. 371; Wilson v. Fuller, 9 Kansas, 176.
   McIlvaine, J.

We have considered two questions in this case — 1- Was evidence improperly admitted on the part of defendant 1 2. Did the court err in the charge to the jury ?

The issue to which the evidence referred to relates was, in substance, as to the relation between the parties of indorser and indorsee. The controversy was as to the existence of a contract of indorsement, and not as to the terms of the contract. That the name of the defendant was on the back of the note at the time he transferred it to the plaintiff was not disputed, nor was it disputed that the name was written there long before the transfer and for a purpose other than such transfer. That the presence of defendant’s name in blank upon the -back of the note at the time of its sale and delivery to the plaintiff, is prima facie evidence of a contract of indorsement is undoubtedly true, nor do we think the prima facie case thus made is wholly overcome by showing that the name was previously written for another purpose, for the reason that if both parties knew of the existence of the previous indorsement it is presumable that it was adopted as a present indorsement, and as evidence of the contract of sale and transfer, but prima fa,cie only. Surely, as between the parties, it would be unjust to conclude the apparent indorser contrary to the true meaning and intention of the parties. And -we can see no good reason for holding that the declarations and conversation of the parties at the time, and parts of the res gesta, are incompetent to prove the true meaning and intention of the parties. Morris v. Faurot, 21 Ohio St. 155.

The plaintiff requested the court to charge the jury, that “if the jury found the facts, as claimed by the plaintiff to be true, then there was a sufficient demand and notice, under the circumstances, to entitle the plaintiff to recover,” which the court refused.

The court also refused to charge the following, as requested :

“If the jury find that Wolcott, the maker of the note described in the petition, was insolvent, and that Burt, the defendant, when he transferred it to plaintiff for a valuable consideration, had made an effort to collect it of Wolcott and had failed; and if, when he transferred it, he said to the plaintiff, pointing to his indorsement, this is the security I give you for the note, and the plaintiff said I will take it if Wolcott, the maker, says it is all right, and that he would pay it, or words to that effect, and then both plaintiff and Burt went to where Wolcott, the maker, was, and the plaintiff had a conversation with Wolcott, asking him if he could pay the note, and Wolcott, in substance, said he thought he could pay it soon, or within about thirty days, and the plaintiff communicated to Burt this conversation, and said he would take the note, and then Burt handed him the note, being on the same day and on the occasion of the visit of the plaintiff and Burt to Wolcott, to ascertain whether the plaintiff would take the note of Burt; that this state of facts was such demand of payment of the maker by plaintiff and notice to Burt of non-payment as would make him liable as indorser of the note to plaintiff without further demand and notice.”
Also, £<If the jury find from the statements of Burt to plaintiff, prior to a transfer of the note to him by Burt, that Wolcott, the maker, was insolvent, that he liad been unable to get it from Wolcott, but perhaps he, the plaintiff, could get it out of him as an old schoolmate, and he desired him to take it and collect it of Wolcott if he could, or if there was such conduct on the part of the indorser Burt as is calculated to put a reasonable person off his guard, or .to induce him to omit that prompt demand which, under other circumstances, would be necessary, and to omit to give notice of dishonor ; in that case neither demand or notice is necessary to hold Burt on his indorsement.”

But the court did charge as follows :

That the plaintiff, to entitle him to recover, must have been the owner of the note at the time the demand was made, and that the plaintiff could not have been the owner of the note at the time of plaintiff’s talk with the maker of the note at Ravenna, if plaintiff had not then agreed to take the note, and that plaintiff’s receiving the note immediately after said talk would not date back and make him the owner of the note at the time when plaintiff talked with Wolcott about Wolcott’s being able to pay it;” to which charge of the court, as given, the plaintiff at the time excepted.

And the court also charged the jury that if they ££ found that on the 27th day of May, 1875, the plaintiff saw the maker of the note, and that the maker promised to pay it in 30 days, and the indorser agreed to the extension, then in that case, demand on the maker must be made on the 30th day thereafter, without three days of grace, and notice given to the indorser Burt, within a reasonable time thereafter; that a demand of payment on the 6th day of July following, and notice of non-payment to defendant Burt, the indorser, the next day thereafter, would not be sufficient notice to hold the indorser, because the parties both live in the same neighborhood to which charge of the court the plaintiff, at the time, excepted.

It will be observed that the plaintiff placed his case upon the ground, -(assuming that the relation of indorser and indorsee existed between the parties), that demand of payment from the maker, and notice of non-payment to the indorser, had been waived, while the court placed the right of the plaintiff to recover, upon strict compliance with the rules of commercial law in respect to demand and notice, when the same had not been waived.

We think the plaintiff was entitled to have the claim of waiver fairly submitted to the jury.

The charge as given excluded a consideration of that claim by the jury. Indeed we think, the jury should have been instructed, that demand and notice were waived, if the facts claimed by the plaintiff were true.

We concede that demand and notice were not proven, as required by law in cases where demand and notice are necessary to hold the indorser; but we think such proof was not essential to the plaintiff’s recovery under the circumstances of this indorsement. At the time of the indorsement the parties thereto were fully informed that the maker could not at that time make payment, nor probably within 30 days, and the inference is clear that parties, indorser and indorsee, intended to await payment for that period. If so, demand and notice within that period were waived. And clearly, demand and notice, under the circumstances, were not required at the end of the 30 days by any rule of law, for the reason that the note had been long past due, and no contract had been made with the maker to extend the date of payment to any other time than that named in the note itself; so that neither the rule of law in respect to demand and notice at maturity of commercial paper indorsed before maturity, nor that in respect to indorsement of paper past due, were applicable in this case, after the lapse of 30 days from the date of the transfer.

Judgment reversed.


author: By the Court.

text:
    Baldwin v. Sheets.
    Error to the District Court of Montgomery county.
    01 U. Baldwin, in pro. per.

      Gunehel db JSowe, for defendants in error.
   By the Court.

Action by A. against B. C. and D. Judgment for defendants. Petition by A. under civil Code (2 S. & C. 1112), setting forth the issue in the action, and alleging that the defendants entered into a conspiracy to and did testify falsely, and thereby obtained the judgment, evidence to sustain such allegations having been discovered since the trial: Held, that the petition is sufficient under the civil Code of 1853, § 534, subdivision 4, which authorizes the Court in which the judgment was rendered to set the same aside “for fraud practised by the successful party in obtaining the judgment or order.” See 74 Ohio L. 115; 75 Ohio L. 673; Rev. Stats. §§ 5354-5365.

Judgment reversed.


text:
    Leggett v. McClelland.
    1. The rule that when a principal indemnifies one of several sureties, each is entitled to share therein, does not apply where such indemnity is furnished by a stranger for the sole and exclusive benefit of one.
    2. Where the wife of the princip il mortgages her separate real estate for the exclusive use and benefit of one of her husband’s sureties, such mortgage does not inure to the benefit of his co-sureties.
    3. By existing statutes a husband has no estate or interest in the separate property of his wife during coverture; hence by uniting with her in such mortgage, he contributes no part of the indemnity; his estate by the curtesy is that of a surviving husband in the real estate of which his wife was the owner at her death.
    Motion for leave to file Petition in Error to the District Court of Tuscarawas county :

      A. W. Patrieh and A. L. 'Neely, for the motion.

      Albaugh cía Graha/m, contra.
   Johnson, C. J.

The facts briefly stated are, that William Leggett and Richard McClelland as co-sureties of George P. Craig, on his bond as township treasurer, were compelled to pay some $300 each, to make good the default of their principal. Craig’s wife had executed to. McClelland an indemnity mortgage on her separate property, to save him harmless as a surety of her husband. This mortgage was for his sole and exclusive benefit. In order to do this, and as necessary to its legality, her husband joined in its execution. Subsequently to the payment by the co-suretie's, McClelland, in proceedings to foreclose, was reimbursed out of the proceed* of the sale of the wife’s lands thus mortgaged. The administrator of William Leggett now sues to recover one half the amount received from this indemnity. Both husband and wife are still living.

The common pleas decided that upon this state of fact, the plaintiff could not recover, and this judgment was on error to the district court affirmed.

It is now sought to reverse these judgments on the ground that this indemnity inures to the equal benefit of both sureties. This is resisted. Tt is claimed that the rule of equality of right to an indemnity fund applies only when it comes from the principal, and that as this mortgage was upon the separate property of the wife, and was given for the sole and exclusive benefit of defendant, it does not come within the general rule applicable where the indemnity is out of the estate of the principal.

Where a principal debtor indemnifies one or more sureties, his creditor may, in equity, be subrogated to the debtor’s right to the same to satisfy his claim after exhausting his legal remedies, so on the same principles of justice or natural equity, all the co-sureties are entitled to share equally in such indemnity. Each has an equal equity in the fund provided by the principal. This right to subrogation by the creditor, or contribution by co-sureties is not founded on contract, but grows out of the natural equity of the case. The property of the principal is bound for his debts. His obligation to his snreties are equal, therefore indemnity to one, coming from him, is indemnity for all. Oldham v. Broom, 28 Ohio State, 41; Dering v. Winchelsea, 1 Lead. Cas. in Eq. [103] and notes; Brandt on Suretyship, § 223 ; Gaster v. Waggoner, 26 Ohio St. 450.

This rule of equality is subject to be varied by agreement among the parties.

In Dering v. Earl of Winchelsea, 1 Lead. Cas. in Eq. [103], Lord Ch. Baron Eyre says : That contribution is bottomed and fixed on general principles of justice, and does not spring from contract, though contract ma/y qualify it.”

See notes to above case, p. 171, 4th edition.

An instance of such qualification is found in Moore v. Moore, 4 Hawkes (N. C.), 15 Am. Dec. 523, where one co-surety, in consideration of his becoming such, stipulated for and received, with the consent of his co-sureties, separate indemnity from the principal. It was held that the co-sureties could only share- in the surplus after such surety had been fully indemnified. Such indemnity was not in fraud of the rights of co-sureties.

The general rule, however, is as stated, and the reason on which it rests is, that one who takes indemnity from the principal is, in equity, a trustee for all who are equally bound.

As the taking of such indemnity from the principal lessens his ability to pay, it would be a fraud on his co-sureties to .allow him to convert it to his sole use in the absence of their consent. As trustee for his co-sureties, he is bound to such discreet and reasonable use of the securities as would be required from a trustee. Carpenter v. Kelley, 9 Ohio, 106.

So if the debtor give his surety indemnity the creditor may avail himself of it by subrogation, though in the first instance it was unknown to him. Hopewell v. Bank, 10 Leigh, 206, 221; McCullom v. Hinckley, 9 Vt. 143.

The creditor’s right of subrogation rests upon the same principle of natural equity as that of co-sureties to share in the indemnity. The property of the principal belongs to the creditor, and he, after exhausting his remedy at law, may subject it in the hands of the surety to the satisfaction of his debt The holder of such indemnity, is a trustee for the creditor. So also is he a trustee for his co-sureties.

This indemnity was not furnished by the principal. It was the separate estate of his wife and not liable for his debts. The wife, for reasons satisfactory to herself, mortgaged her separate property for the sole and exclusive benefit of defendant. It was no fraud upon the creditor or the co-surety to indemnify one surety. As it was not the property of the principal, no trust arose, either in favor of the creditor or of the co-sureties, in the absence of any showing that the bond was accepted, or that the co-sureties signed on the faith of such indemnity.

The indemnity was to save McClelland harmless as surety. He has been fully reimbursed out of the wife’s separate estate, thus fulfilling the terms of the wife’s contract.

To compel him now to contribute one-half of this fund to the co-surety, would violate the contract she made. As she was under no obligation to pay the debt, and as her husband had no interest in the property liable to be taken to satisfy the claim, neither the creditor nor the co-sureties had any right, in equity, to treat defendant as trustee for them.

It is claimed however, that it was a joint mortgage of husband and wife, and conveyed his contingent estate by the curtesy, and to that extent, at least, was an indemnity by the principal.

It is enough to say, that under the existing statutes, the separate property of the wife belongs to, her, and with all its issues, rents and profits, is under her sole control, that the husband, during coverture, has no estate or interest in the same liable at law or in equity for his debts or to his incumbrance, and the only estate of curtesy left to him is as surviving husband in the real estate of which she died the owner.

As this land has been sold, during coverture, his curtesy expectant, if there be such a contingent estate, is gone, and at her death no right to curtesy would survive to her husband.

The statute relating to the acknowledgement of deeds and other instruments, required he should join with his wife in the execution of this mortgage. It was a legal necessity that he should do so to make it a valid mortgage, but in so doing he furnished no part of the indemnity. The fund therefore did not arise even in part from the principal, and hence the general rule that when a principal indemnifies one surety it inures to the benefit of his co-sureties, does not apply.

Judgment affirmed.


author: Owen J.

text:
    Commissioners vs. Board of Public Works.
    1. The provisions of an act to authorize the commissioners of Muskingum county to build certain bridges therein named across the Muskingum River and State canal, passed February 24, 1868 (65 Ohio L. 219), and an act amendatory and supplementary thereto, passed Apr! I 3,1876 (73 Ohio L. 274), left to the commissioners the determination of the location, within the prescribed limits, of the proposed bridge; but the approval by the Board of Public Works of the “ plan” of the bridge as distinguished from its “ location ” was prerequisite to its construction
    2. The disapproval of the “plan” by the Board of Public Works upon the sole ground of objections to its location, being unwarranted, a writ of mandamus may properly issue to require it to exercise its discretion and either approve or disapprove such plan without regard to the question of location.
    3. The provisions of the act above named were not repealed or affected by section 4987 of the Revised Statutes.
    4. A local and special act is not repealed or otherwise affected by the con flicting provisions of a subsequent general statute on the same subject, unless the legislative intent that such effect be given the later enactment is clearly manifest.
    5. While Congress may, in the assertion of its power under the constitution to regulate commerce among the States, exercise control over the navigable waters within this State, so far as- to protect and improve their free navigation, yet while this power remains dormant and uneffectuated by legislation, the State has plenary authority over bridges across them, and there is nothing in the ordinance of 1787 that precludes her from exercising such authority.
    6. The enactment by the general assembly of the provisions above named for the construction of such bridge, is an assertion by the State of such authority, and the Board of Public Works has no power, in a proceeding to compel its action according to such provisions, to question the right of the State to authorize the construction of such bridge, or other, wise oppose its construction, upon the alleged ground that the naviga. tion of the waters to be bridged will be thereby obstructed.

      Application for mandamus.
    By an act of the General Assembly which took effect February 24th, 1868 (65 O. L. 219), and an act amendatory and supplementary thereto, which took effect April 3d, 1876 (73 O. L. 274), the commissioners of Muskingum county were “authorized and empowered to build a bridge across the Muskingum River and State canal ” at such point, within designated limits, “ as -said commissioners may determine.’ ’
    Section 2 of the act of 1868 provides that before the construction of a bridge under its provisions, “the said commissioners shall submit the plan of the same to the Board of Public Works of said state and receive their approval thereof.”
    The streets to be connected by the bridge were public highways.
    The proposed site of the bridge is within the corporate limits of the city of Zanesville.
    The Muskingum River, at the point of the proposed location of the bridge, although known to the law and the courts as a navigable river, is not in fact navigable except by means of the canal, which constitutes, in part, the “Muskingum River improvement.” The commissioners duly determined to build a bridge of the kind, and located within the limits, authorized and prescribed by the legislation abw\ referred to, and procured to be made a full and complete plan or model of a bridge, embracing a swing bridge where the same crosses the canal, which, on the 11th day of April, 1883, they submitted to the board of public works, for the purpose of receiving its approval thereof.
    The board refused to examine for approval or disapproval, such plan or model, but entered on its records, in reference thereto, the following: “The board disapproves said plans, believing that the location of the bridge, as proposed, would be injurious to the state’s interests.” Thereafter, in May, 1883, the board refused, on request, to reconsider its former action, and entered upon its records, in reference thereto, the following: “ Ordered, that this board refuses to reconsider its action concerning the bridge proposed to be built at Zanesville, as expressed in its order of April 11, 1883, for the reason that the building of the bridge at Sixth street would injuriously and unnecessarily interfere with the rights of the public and persons engaged in the navigation of the Muskingum River.”
    It was a fact conceded at the hearing of the present proceeding, that the board of public works based its action upon its disapproval of the proposed location of the bridge.
    The object of of this proceeding is to compel the defendant, by writ of mandamus, to exercise its discretion, and either approve or disapprove the plan of the proposed bridge.

      T. P. Linn and W. J. Gilmore for plaintiff:
    The acts of February -24, 1868, (65 Ohio, L. 219) and of April 3, 1876, 73 Ohio Laws, 274, clothe the commissioners with exclusive power over the location of the bridge within the prescribed limits or bounds fixed by the acts.
    The location made is within the prescribed limits or bounds, and also within the discretionary powers of the commissioners under the power conferred. *
    A special act is not repealed by a general act, 14 Ohio St. 47 ; 19 Ohio St. 320, 346; 22 Ohio St. 508, 515; 20 Ohio St. 421.
    The ordinance of 1787 does not render the special acts void. 9 Ohio, 52; 23 Ohio St. 523; 1 McLean, 337.
    The State was the judge whether the building of the bridge as located by the commissioners would necessarily or injuriously affect navigation ; and having decided by the special acts that it would not do so, the respondents could not question such decision. 37 Ohio St. 174.

      A. W. Train for defendants :
    I. The uninterrupted navigation of the Muskingum River is provided for by the ordinance of 1787, Art. 4, hence the State cannot authorize any obstruction to the navigation of such river, 5 Ohio, 410; therefore the acts of the legislature will be if possible construed as not intending to permit an obstruction. 5 Ohio, 410.

      II. The board of public works has by the constitution and laws, control of The Muskingum Improvement, and are required to keep the same open for navigation and free of any obstruction. Const. Art. 8, Sects. 12,13; Rev. Stats. § 7691. By implication any one may bridge a canal or navigable stream provided he get license from the board .of public ■works, if in the opinion of the Board the bridge will not injure navigation. Rev. Stat. of Ohio, § 7763.
    III. The act of 1868 cannot be construed as a grant, but only as an enabling act for the relators, for the following reasons:
    1st. No grant was necessary, the general law authorized the construction if it would not obstruct navigation, and to hold that the Legislature intended to authorize the obstruction of navigation would be to hold the act void.
    2d. The board of public works being provided for in the constitution, the legislature may not directly control the public works, it may only prescribe and limit the powers of the board over the same and the act will not be construed to authorize anything not within the power of the legislature to grant.
    3d. The act does confer new powers on the relators, and powers without which they would be powerless to act; oand it must be presumed that the whole object of the legislature was to confer these indispensable powers.
    IY. If the act of 1868 shall be construed to be a grant, the relators will be controlled in the exercise of their powers by section 4937, Revised Statutes, and may not build the bridge until they obtain the approval of the respondents of the location as well as of the model.
    Y. Before the court will hold that the legislature intended to limit the general powers of the respondents by the act of 1868, it will give to the word “plan” a meaning more comprehensive than a mere model, and hold that it includes location and model both.
   Owen J.

The defendant maintains that by the acts authorizing the construction of the proposed bridge, it is charged with the duty of considering and approving or disapproving the location as well as the plan of it. These acts seem clearly to leave its location entirely with the commissioners. The respondent says, however, that section 4937 of the Revised Statutes so far qualifies the provisions of the special bridge acts as to make its consent in writing “ for the model and location” of the bridge prerequisite to its construction. This claim is well made if this section is to exert a controlling effect upon the provisions of the bridge acts. The provisions of this section were first substantially enacted April 16, 1874 (71 O. L. 84), and amended March 24, 1875 (72 O. L. 110), while the power to determine the location of the bridge was confided to the commissioners by the amendatory and supplementary act of April 3d, 1876 (73 O. L. 274). To give to section 4937 the effect claimed for it, it is to be regarded as having all the force of an original enactment as of the date of the last revision of the statutes— January 1st, 1880, and to work the repeal of all inconsistent or conflicting legislation. It should be borne in mind that the act for the revision and consolidation of the statutes related only to the statutes of a general nature. The acts authorizing the construction of the proposed bridge were special and local and have not been repealed nor otherwise affected, unless’ by an implication raised by the section in question.

Repeals by implication are not favored. So, particular and positive provisions of a prior act are not affected by a subsequent statute treating a subject in general terms and not expressly contradicting the provisions of the prior act, unless such intention is clear. Perrysburg v. Fosdick, 14 O. S. 472; Knox Co. v. McComb, 19 O. S. 320, 346; Shunk v. First National Bank, 22 O. S. 508, 515; Olds v. Franklin Co. 20 O. S. 421; Allen v. Russell, 39 O. S. 336.

The decided weight of authority supports the proposition that when there is a general act and also one local and special on the same subject, in conflicting terms, neither necessarily abrogates the other, but both are permitted to stand together, and it is immaterial which is of the later date. Bishop on ike Written Laws, 112 b.; Crane v. Reeder, 22 Mich. 322; People v. Quigg, 59 N. Y. 83.

If the legislative intent that the general law shall supersede the local and special act is clear, it will of course prevail. No such intent being manifest in the present case, we conclude that the provisions of the acts under which the commissioners are proceeding must prevail, and that the location of the bridge was a subject confided exclusively to them.

Another defense relied upon by the defendant is that the proposed bridge will obstruct the navigation of the Muskingum River (as improved by the canal) and, being a navigable stream, the ordinance of 1787 protects it from obstruction by any act of the State. This ordinance declared that: The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between them, shall be common highways and forever free, as well to the inhabitants of said territory as to the citizens of the United States and those of any other State that may be admitted into the confederacy, without any tax, impost, or duty therefor.”

The case of Hogg v, Zanesville Carnal and Manufacturing Co., 5 Ohio, 410, is relied upon as supporting this claim.

The later case of Hutchingson v. Thompson, 9 Ohio, 52, established the broader doctrine that the clause of the ordinance above quoted did not prohibit the States formed out of that Territory from legislating with respect to those rivers, or affecting their navigation, when the regulations subjected equally their own citizens and the citizens of other States to the inconveniences resulting from such legislation.”

Although the ordinance was passed one year and nearly eight months before the federal constitution took effect, some of the earlier cases proceeded upon the assumed superiority of the former to the latter respecting the navigable waters within the territory originally affected by the ordinance.

The doctrine now firmly established is that over the navigable waters within the boundaries of these States, Congress, in the assertion of its power under the constitution to regulate commerce among the several states, may exercise control to the extent necessary to protect, preserve and improve their free navigation, but that while this power remains dormant and until that body act, the states have plenary authority over bridges across them, and that there is nothing in the ordinance of 1787 that precludes them from exercising tüat authority. Wilson v. Blackbird, Creek Marsh Co. 2 Pet. 245; Gilman v. Philadelphia, 3 Wall. 713; Welton v. State of Mo. 91 U. S. 275; Pound v. Turck, 95 U. S. 459; Escanaba Co. v. Chicago, 107 U. S. 689.

Concerning the navigation of the Mnsldnguin River, Congress has never exercised its authority by legislation.

This leaves the State of Ohio with plenary power to act concerning this as well as the other highways to be affected by the proposed bridge.

That she has power to require one public easement to yield to another more important, is a principle well established. Hickok v. Hine, 23 O. S. 523. To the state, then, is confided the office of determining whether any and what obstruction to the navigation of the Muskingum River, and of the canal as an improvement of it, would result from the construction of the bridge. We do not, nor are we required to, assume that the state has power to obstruct the navigation of the waters to be traversed by the proposed bridge. The state has acted. By the special acts under which the commissioners are proceeding, she has prescribed the duties of the commissioners and the board of public works, respectively. It is to be supposed that the effects of the proposed bridge upon the highways to be affected by it were the subjects of consideration and determination at the time of the passage of the acts authorizing it, and the inquiry is a pertinent one : What standing has the defendant in this court to tender the issue in this case, that the bridge will obstruct navigation. It should be borne in mind that a canal is to be bridged and not simply a navigable river. True, it is with it as an improvement of the river we are dealing; but it is as one of the “public works ” of the state, and not as a navigable river that the defendant is at all concerned in it. It is claimed for and by the defendant that it is the creature of the constitution and derives therefrom its power of control over the public works of the state, and with this its right to challenge, in this proceeding, the conduct of the state in authorizing the construction of the proposed bridge. ■

•The constitution (Art. 8, Sec. 12) provides: “ So long as this state shall have public works which require superintendence, there shall be aboard of public works * * Sec. 15, of the same article provides: The powers and duties of such board of public works * * * shall be such as now are or may be provided by law.”

The board of public works possesses no powers except such as are expressly conferred by law, or as are necessarily implied.” Johnson, J. in State v. Ry. Co. 37 O. S. 174. The defendant must look to the acts of the general assembly for direction concerning its powers and duties. The acts authorizing the construction of the proposed bridge, point out the duty of the boárd of public works in regard to it, which is that it examine and consider, with a view to its approval or disapproval, the ‘ ‘ plan ” of the bridge presented by the commissioners, without regard to the question of location.

Having refused to do this, a peremptory writ will issue, according to the prayer of the petition.

Johnson, C. J. did not sit in the case.