author: White, C. J.

text:
    The State ex rel. Lowes v. Thompson.
    Where a relator prosecutes a civil action in quo warranto under the revised code, in his private right, he is not required to obtain leave to file the petition; but the action must be brought in the county in which the defendant resides or may be summoned, in accordance with section 10, chapter 5, title 1, of the act.
    Motion for leave to file a petition in quo warranto.

      Nevill Kumler, for the motion. *
   White, C. J.

The petition charges the defendant with intruding into and usurping the office of member of the board of education of the city of Dayton, in the county of Montgomery. The petition also avers that the relator is entitled to the office, and that he is unlawfully excluded therefrom by the defendant. The object of the petition is to oust the defendant from the office, and to obtain the induction of the relator. The relator asks leave to file his petition in this court, aud to have process issue therefrom against the defendant, requiring him to answer the petition.

The application is made under chapter 8, title 4, of the revised code. 75 Ohio L. 814. The chapter is devoted to the subject of quo warranto, and is a compilation and revision of the former statutes on that subject.

The chapter provides that proceedings in quo warranto .shall be prosecuted by civil action; and three modes are prescribed in which the action may be prosecuted : 1. By the prosecuting attorney; 2. By the attorney-general; and, •3. By a person on his own behalf, where he claims to be entitled to a public office unlawfully held and exercised by another.

Prosecutions in the first of these modes were authorized by the act of March 17, 1838. 2 S. & C. 1264. The first section of that act provided, “ That the prosecuting attorney of any county of this state shall, when directed by the governor, supreme court, or the general .assembly, or he may, upon his own relation, or the relation of any private individual, upon leave granted by the supreme court in term time, or any judge thereof in vacation, file an information in the nature of a quo warranto in the supreme court for the proper county,” in the cases therein specified.

The supreme court mentioned in this act has reference to the supreme court under the former constitution, and •of which, under the present constitution, the district courts in the several counties are the successors. Const., art. 14, ■§ 12. See also section 6 of the act of March 14, 1853, rel- * ative to the organization of courts of justice. 1 S. & C. 383.

Under the acts in force, therefore, at the time of the revision, the authority of prosecuting attorneys to institute proceedings in quo warranto was limited to the district courts of their respective counties. And it may further be remarked that the act prescribing the duties of prosecuting attorneys, and which is still in force, limits those duties in regard to prosecuting suits in which the state is a party to the counties in which they were elected, and also that it was not the object of the chapter of the revised code now under consideration to prescribe or enlarge the duties of these officers.

2. Prosecutions by the second mode were authorized by the act of May 1, 1852, prescribing the duties of the attorney-general. S. & C. 88. Under that act the attorney-general was authorized to prosecute proceedings in quo warranto in the supreme court, in the district court of Eranklin county, or in the district court of any county of the state, where the defendant might reside or be found, or if the defendant was a corporation, in the county where it had its place of business. This act is still in force.

3. Prosecutions by the third mode are authorized by section 5 of the chapter now under consideration. The section is as follows: “ A person claiming to be entitled to a public office unlawfully held and exercised by another may, by himself or an attorney at law, upon giving security for costs, bring an action therefor.”

This section is a revision of the act of March 18, 1839. 2 S. & C. 1270.

The original act provided that the proceeding should be instituted “in the supreme court in the county” where the defendant had his office. This provision is omitted in the revised section, for the reason that in the revised code, proceedings in quo warranto are classed as civil actions, and the county in which such actions are to be prosecuted is provided for in a distinct chapter of the code as revised. Chapter 5, title 1, is devoted to this subject, and the present case is governed by section 10, which provides that every action, other than those specified in the chapter, must be brought in the county in which the defendant resides or may be summoned. 75 Ohio L. 611.

It is true section 9 (75 Ohio L. 814) provides that “an action under this chapter can be brought only in the supreme court, or in the district court of the county in which the defendant or one of the defendants resides or may be found, or when the defendant is a corporation, in the county in which it is situated or has a place of business; but if the attorney-general file the petition, the action may be brought in the District Court of Franklin county.”

This section was intended to exclude other courts than those named from entertaining jurisdiction in this class of civil actions ; but it was not designed to prescribe the class of cases to be brought in the supreme court or in the district courts.

Prior to the revision, the attorney-general alone was authorized to prosecute proceedings in quo warranto in the supreme court; and we discover no intention on the part of the legislature, in making the revision of the former statutes, to change the law on this subject.

But however this may be, it is quite plain that the forum in which the relator must seek his remedy is the district court, and not in this court. '

In cases like the present, where the relator sues in his private right, leave to file the petition is not required.

The motion for leave to file the petition is, therefore, overruled; and the application for process to issue thereon from this court is denied.


source: Caselaw Access Project

author: Okey, J.

license: Public Domain

text:
    Heck v. Heck.
    Where the appraisers of the personal estate of a decedent, first appointed,, failed to make to the widow any allowance for her year’s support, and the probate court, on her application, appointed new appraisers to make-such allowance, the executor or administrator should have notice of the-proceedings; but the irregularity of making the order and allowance, without such notice, should be corrected in the probate court; and where application was made to that court for the purpose, and overruled, and the record does not show that any injustice was done, no-ground of reversal is shown.
    Error to the District Court of Hamilton county.
    The Probate Court of Hamilton county appointed appraisers of the personal estate and effects of Ernst Heck, deceased, and the appraisers stated in the inventory of the property, made May 3, 1877, that “ the widow takes under a marriage contract, if entitled to anything.”
    On July 27, 1877, the probate court, on application of Mary Heck, the widow, appointed new appraisers, who allowed her $600 for a year’s support, pursuant to the statute.
    A motion to set aside the proceedings, filed by Joseph Heck, executor of said Ernst Heck, on August 8, 1877, was overruled; the court of common pleas affirmed the orders of the probate court, on error prosecuted by the-executor; and the district court, on error, affirmed the-judgment of the court of common pleas.
    A petition in error has been filed in this court to reverse-the several judgments and orders.

      J. F. Gasser and F. X. Dengler, for plaintiff in error.

      Young, Crawford Sf Goebel, for defendant in error.
   Okey, J.

“A grant of probate or of administration is in the-nature of a decree in rem, and actually invests the executor- •or administrator with the character which it declares belongs to him.” 2 Smith’s Lead. Cas. (7th Am. ed.), *593. .Subsequent acts in the administration of the estate, done by or under direction of the court, are steps in the same proceeding. With respect to some of these acts, provision is made that notice shall be given. Thus the statute (1 'Curwen, 708) which has been repealed and re-enacted with •changes (75 Ohio L. 854), provided that the executor or administrator should give notice of the time and place of making an inventory and appraisement of the personal property, and of the time and place of the sale of such property, .and, if the estate was declared insolvent, he was required, to give notice of the fact. While obviously many acts may be performed in the administration of the estate with-cut notice (as in 5 Ohio, 200), others can not be properly performed in the absence of it, though the statute be silent. Of the latter class are proceedings to appoint new appraisers, and the act of such appraisers in making allowance to a widow for a year’s support. True, the statute did not, in terms, require notice to the executor, much less notice in any prescribed form; but the executor represents the ■estate and in a sense the creditors, and upon the plainest principles of justice, he is entitled to notice of these proceedings. Again, the new appraisers were appointed on the ground that the former appraisers had failed to make an allowance for the support of the widow. ‘ That appointment was irregular. The court should have instructed the original appraisers as to their duty in that respect, though, as hereafter stated, we do not decide what that instruction .should have been. But all the matters complained of were irregularities, to be corrected in the probate court (Civil Code, §§ 534-542), and its action in this respect will not be reviewed on error where no injury is shown.

We can not say, indeed, looking into this record, that the original appraisers were not absent, or that they had not become incompetent; nor can we say that the' executor was not notified of the application to' appoint the new appraisers. Here it appears that the order was .made on the .application “ for the appointment of new appraisers, the exhibit and proof.” How can we say that this did not include proof of notice to the executor ? There is nothing in the record to show that notice was not given, except the motion, án,d that is not evidence. The court may have overruled the motion on the ground that notice had been given.

Again, the executor appeared in court, and, without making complaint, then or at any time, as to the amount of the allowance, moved the court to set aside the order appointing the new appraisers, and the action of such appraisers, on the further ground that the widow is barred of such allowance by an antenuptial contract. But that contract is not part ■of the record, in any permissible form. It is not embodied in a bill of exceptions, or ordered to be made part of the record. We are not permitted to consider it; and, therefore, we express no opinion whether the widow was barred of th.e allowance by the antenuptial agreement; nor do we decide whether the probate court is clothed with jurisdiction to determine such question, or whether it is the duty of that court, under such circumstances, to instruct the appraisers to make the proper allowance, leaving the question whether it is barred by the antenuptial contract to be determined elsewhere.

Judgment affirmed.


author: Boynton, J.

text:
    Horst v. Dague.
    A testator directed his executor, by his will, to sell his real estate, and after setting aside a specified sum for the support of the widow, to divide the remainder of the proceeds of the sale among his eight children. After the testator’s death, and before the executor sold said real estate. S., a son of the testator, mortgaged his interest therein, to secure the payment of a loan of money. Held, that such mortgage operated as an equitable assignment to the mortgagee, of the interest of S. in the proceeds of the sale of said real estate by the executor.
    Error to the District Court of Wayne county.

      The original action was brought in the Wayne Common Pleas, on November 26, 1873, by the defendant, Hague, against Simon Rohrer, Benjamin Rohrer as executor of the last will and testament of Isaac Rohrer, deceased, and Henry Warren. The object of the action was to-compel the application of funds to come into the hands of said executor, belonging to said Simon, to the payment of a ’debt of Simon, upon which Hague was surety-He alleged the recovery of a joint judgment against-himself and Simon Rohrer, on November 12, 1873, by Warren, in the Circuit Court of Branch county, Michigan, on a promissory note of Simon, on which the-plaintiff below was surety; and that the only property possessed by Simon consisted of his distributive share-of his father’s estate, which was alleged to be sufficient to-pay said debt, and soon to be ready for distribution by said executor. He prayed for a decree directing the application-of such fund to the payment of such judgment. The items-of the will of Isaac Rohrer bearing upon Simon’s interest in the estate were as follows :
    “ 1st. It is my will, and I do order, that all my debts and funeral expenses be paid as soon as can conveniently be done after my decease.
    “2d. I give and bequeath to my beloved wife Rebecca, the interest of three thousand dollars annually — the principal to be secured by mortgage on my real estate ; and I also empower my executor hereinafter named to purchase-a property for a home for my said widow, not to exceed one thousand dollars in value ; all the above property she-shall have as long as she remains my widow; but she shall forfeit all claim to the same if she marries again.
    “ 3d. I do order that my executors shall sell my personal property at public sale, and also my real estate, and I empower them to make deed to purchasers, to execute,, acknowledge, and deliver in fee simple.
    “ 4th. I give and bequeath all the remainder of my personal and real estate to my eight children, namely : Simon, Bavid, Isaac, Martin, Baniel, and John, my sons, and Mary Ann, and Emma Frances, my daughters, to be equally divided amongst them, with the exception of Simon, the oldest son — he is to have four hundred and twenty-five ■dollars less, he having received that amount before.”
    It appears from the answer of the executor, that on November 27, 1873, he sold said real estate on deferred payments, and that when such payments were received from the purchaser, Simon would be entitled to the sum of about $600. He also alleged that Simon Rohrer had mortgaged his interest in said real estate to one David Horst. Horst was made a party defendant, and from his .answer it appears that on the 13th day of September, 1873, Simon Rohrer mortgaged to him to secure a loan of fifteen hundred dollars, for one year, the undivided -eighth part of said real estate mentioned in said will, and that said money was loaned on the express condition that .■said Simon would secure the same by mortgage of his interest in said real estate, as the heir of Isaac Rohrer, and as .a legatee under said will. He prayed for an application ■of the avails of said interest, when the property was sold, to the payment of the mortgage debt, when due, and for an injunction against the plaintiff'. Simon Rohrer was in •default, and no issue was joined by Dague, or otherwise, on the facts alleged in the answer of Horst.
    The district court, to which the cause was appealed, gave judgment on these facts for the plaintiff' below, Dague, directing the said executor to pay, as he received the avails of the sale of the real estate, such portion as Simon was entitled to under the will of Isaac Rohrer, to the clerk of ;the court, to be applied to the payment of the Michigan Judgment.
    This judgment is assigned for error.

      J. P. Jeffries, for plaintiff in error f
    All estates under wills become vested on the death of the •testator, unless some intervening estate expressly prevents. ■2 Redfield on Wills, 215, § 16; lb. 238, 250, 251; 2 Williams on Ev. § 1054; Pruden v. Pruden, 14 Ohio St. 251;
      Sweet v. Chase, 2 N. Y. 73; Conkling v. Moore, 2 Bradf. Sur. 179; Marsh v. Wheeler, 2 Edw. Ch. 156; Chew’s appeal, 37 Penn. St. 23 ; Moor v. Lyons, 25 Wend. 119.
    Simon Rohrer took a fee in the land at the death of his father. 1 Jarman on Wills, 619; 1 Hilliard on Mort. • 215-216; Ives v. Comm’rs, Wright, 626; 25 Wend. 119: Lessee of Thompson v. Hoop, 6 Ohio St. 487.
    The direction to sell can not defeat the gift of the land,, as it is given to the testator’s children. 1 Redfiekl on Wills, 460-465; Rathburn v. Dyckman, 3 Page Oh. 9;. Lessee of Warman v. Teagardnen, 2 Ohio St. 380; Young v. McIntyre, 3 Ohio St. 498.

      McSweeney § Parsons, for defendant in error,
    claimed that the mortgage was a mortgage of realty or it was nothing. There is no such thing in Ohio as an equitable-mortgage. 17 Ohio, 371; Bloom v. Noggle, 6 Ohio St. 54.
   Boynton, J.

The judgment of the district court declares, in effect, that the mortgage of Simon Rohrer to the plaintiff in error conveyed no interest acquired by the former in the estate of his father by virtue of the provisions of the will. The reason assigned in support of this conclusion is, that the testator’s direction to his executor to sell his real estate and to divide the proceeds of sale, as provided in the will, operated in equity to convert the reality into personalty (.Furguson v. Stuart’s ex’rs, 14 Ohio St. 140), and that, inasmuch as the mortgage does not purport to convey or pledge any interest in the personal estate, or in the proceeds of the sale of the real estate, to-secure the payment of the mortgage debt, the plaintiff' acquired no interest in the avails of the sale made by the executor under the power given by the will.

In this holding we think there was error. The rights of the parties rest, and are to be determined wholly upon considerations of equity.

If, as between Simon Rohrer and the plaintiff in error, the latter acquired, by his mortgage, a lien upon that part or share of the proceeds of the sale of the real estate of the testator which would belong to Simon when the executor should execute the power of sale, it is very manifest that the judgment was wrong, unless the defendant, Dague, had acquired a lien upon such fund superior-to that of the plaintiff. That he acquired or possessed such lien before the execution and delivery of the mortgage, is not claimed. Nor did he acquire one by the commencement of the action, unless the case is one in which he is entitled to a judgment subjecting to the payment of the debt upon which he was surety, equities belonging to the principal debtor. That the case is one of that character is extremely doubtful; for, if he may proceed by petition, in the nature of a creditor’s bill, iipon the facts stated, to reach and subject equities to the payment of such debt, his rights would not only be superior to the creditor’s but his rights, as surety, before he pays the debt of his principal, would be superior to those arising upon and by reason of its payment; as in the case of payment, he would be required to reduce his claim to judgment, and exhaust his legal remedies, before resort could be had to equity to enforce its collection. It is true that section 500 of the code, under which it is said the action below was brought, authorized, and the revised code now authorizes, a surety to maintain an action against his principal, to compel him to discharge the debt or liability for which the surety is bound, after the same becomes due. But equity authorized the same thing to be done before the code was enacted. Ranelaugh v. Hayes, 1 Vern. 190; Hayes v. Ward, 4 John. Ch. 123; Story’s Eq. Jur. § 730. The only necessary parties defendant in such ease, the claim not having been reduced to judgment, were the creditor and the principal debtor; and the judgment rendered, required the principal to pay the debt to the creditor, or to the clerk of the court for him, and in case of default, execution was awarded. But, as the executor is not here complaining of the judgment, it is not necessary to a decision of the case, to determine whether the original action was well brought or not; and I have said this much respecting the right to maintain it, more for the purpose of showing that no lien upon the fund sought to be reached was acquired by its commencement, than to establish the fact that there is no ground stated upon which it can be maintained at all. The undenied averments of the answer of the plaintiff in error, conclusively show that Simon Rohrer intended to secure the payment of the sum borrowed of the plaintiff in error by transferring as security therefor, the entire interest acquired under his father’s will in the real estate devised, and when sold, in the proceeds of the sale; and the fact is equally clear, that the money was loaned by the plaintiff on the faith of such security, and in the full belief that he had acquired a lien on such interest, whether denominated real ■or personal, or whether the interest was legal.or equitable. Hence, no prejudice resulting to intervening rights of third persons, if the mortgage failed to express the intention of the parties with sufficient clearness to enable the court to carry the same into effect, equity would reform it, although the mistake consisted in misapprehending or misjudging its legal effect. Evants v. Strode’s Adm’r, 11 Ohio, 480; Clayton v. Freet, 10 Ohio St. 544.

But there is no necessity for such reformation. The intention of the parties is sufficiently apparent. The legal title to the property mortgaged, at the date of the mortgage, was in Simon Rohrer. It was, therefore, quite natural to regard his interest as consisting of real, as distinguished from personal estate, although there was an unexecuted power of' sale outstanding, the execution of which would divest his title, and pass it to the purchaser under the sale made by the executor. But whether the thing mortgaged was called land or money, or however it was described, is quite immaterial in a court of equity, where the substance and not the form of the transaction is regarded. The mortgagor intended the mortgage to cover his interest in the property, whether classed as real or personal estate. The mortgage, therefore, operated as an equitable assignment of Simon Rohrer’s interest in the proceeds of the sale of the real estate, as security for the payment of the mortgage debt.

This being the substance, and, within the contemplation of the parties, the essential character of the transaction, equity will carry the same into effect. Simon Eohrer neither questions its character nor disputes its validity. Nor could he do so successfully if he were so inclined. And as the defendant Dague had no lien upon the fund sought to be reached when the mortgage was executed, his rights, at most, are no better or higher than those of Simon Eohrer. The judgment in his favor was therefore erroneous.

Judgment reversed.


author: McIlvaine, J. By the Court. Boynton, J.,

text:
    Fox v. The State of Ohio.
    A verdict, on an indictment for rape, finding the defendant not guilty of the crime charged, but guilty of an attempt to commit the same, is not sufficient, under section 5, chapter 7, title 2, of the penal code (74 Ohio L. 352), to convict the defendant of an assault with intent to commit rape.
    Error to the Court of Common Pleas of "Warren county.
    The plaintiff' in error was put upon trial, under a single ■count in an indictment, charging him with the crime of rape upon the person of one Annie Catharine Corsmier. The jury returned the following verdict: “We, the jury in this case, do find said defendant, Bonham Eox, not guilty of the rape, as charged in the indictment; but we do find him guilty of an attempt to commit a rape on the said Anna Catharine Corsmier.”
    Thereupon the defendant moved to be discharged, which motion the court overruled, and sentenced the defendant to imprisonment in the penitentiary for the term of three and a half years.
    It is now assigned for error, that the judgment below is not sustained by the verdict.

      William W. Wilson, for plaintiff in error,
    claimed that the accused was not, by the verdict, found guilty of any crime known to, or defined by, the laws of Ohio.
    The jury found him not guilty of rape, but guilty of “an attempt to commit.a rape.”
    The laws of Ohio do not define or mention any such crime as “ an attempt to commit a rape.”
    They do provide against the crime of “ assault with intent to commit a rape” (74 Ohio L. 245, § 14), but they do not name or hint at such “ assault ” as an “ attempt.”
    The verdict can not be sustained under section 5, chapter 7 of the code of criminal procedure (74 Ohio L. 352, 353). Under this section, the jury may find the defendant guilty of an “ attempt,” only in a case where the statute-has declared an “ attempt,” eo nomine, to be an offense, as in the case of attempt to commit arson (74 Ohio L. 247),. and numerous other cases provided for by the code.

      Isaiah Pillars, attorney-general, for the state,
    claiméd that the verdict was equivalent to finding the defendant guilty of “ an assault with the intent to commit a rape.” Williams v. The State, 14 Ohio, 222.
    In the case at bar, attempt has precisely the same legal significance as assault, and the jury, under the instruction of the court, could not have been mistaken in the meaning-of the word “ attempt,” and what was necessary to constitute an attempt.
    An attempt may be defined to be an intent to commit a-particular crime, and the doing of some act looking toward the immediate completion or accomplishment of the-intent. 1 Bishop’s Or. L. § 435; 2 Bishop, §§ 727-729, and 733 (6th ed.)
    An assault may be defined to be an intentional attempt, by violence, to do an injury to another. 2 Wharton’s Or. L. § 1241 (7th ed.)
   McIlvaine, J.

Section 5, chapter 7, title 2 of the penal code (74 Ohio L. 352) provides: “Upon any indictment,. the jury may find the defendant not guilty of the offense-charged, but guilty of an attempt to commit the same,, when such an attempt is an offense.”

The crime of rape is thus defined (section 9, chapter 3, title 1, 74 Ohio L. 245): “ Whoever has carnal knowledge-of a female persou, forcibly and against her will, . . . is guilty of rape.”

Section 14 provides: “Whoever assaults another, with intent ... to commit rape . ... upon the person so assaulted, shall be imprisoned in the penitentiary,” etc.

This section 14 is the only provision of our law which makes an attempt to commit rape an offense. Unquestionably, an assault with intent to commit rape is an attempt to commit the offense; but it does not follow that every attempt to commit the offense 'is an assault with intent,, etc.

It is quite clear that in an “ attempt” to commit an offense an “ intent ” to commit it must present; and it is. equally clear that the preseuce of intent alone is not sufficient. There must be some concomitant act or movement, toward the execution of the purpose.

Under our statute, an attempt to commit rape is not an offense, unless the intent to commit it is accompanied witli some act or movement toward its accomplishment which constitutes an “ assault.” The question, therefore, is: Are-the words “ attempt to commit rape,” in their ordinary meaning, the exact equivalent of the words “assault with intent to commit rape?” We think not, but that the former phrase may describe a state of facts which does not constitute an assault with intent to ravish.

If it were otherwise, the exact definition of “assault”' would be “ an attempt to commit a battery,” and an indictment charging the defendant with an attempt to ravish would be good under a statute making an assault with intent to rape a crime. No one, we conceive, would contend for either of these propositions; not because an assault does not amount to an attempt to commit a battery, but ‘because au attempt to commit a battery may not amount to an assault.

The distinction maybe thus defined: An assault is an . act done toward the commission of a battery; it must precede the battery, but it does so immediately. The next movement would, at least to all appearance, complete the battery. While an act constituting an attempt to commit a felony may be more remote, as is said in Uhl v. Commonwealth, 6 Grat. 706. “ The overt act done in the attempt to ■ commit an offense need not be the last proximate act prior to the consummation of the felony intended to be perpetrated.”

I do not intimate that any act done in furtherance of a purpose to commit an offense, however remote, would be regarded as an attempt to commit the offense; yet I need not discuss the necessary relation between the act done and the crime intended, either as regards time, space, or adaptation, which must ^dst before the law would pronounce it •an “ attempt.” This would be not only difficult, but unimportant labor in this ease, where none of the facts appear. It is enough now to say, that the judgment below must be reversed, unless we can affirm that no act done or movement made toward the perpetration of a rape will .amount to an attempt to commit the crime, in the ordinary meaning of those words, unless the same act or movement would constitute an actual and technical “ assault with intent ” to commit the offense. This we can not affirm, as we have no doubt that, under many conceivable circum.stances, all the essential elements of an attempt may be present, and yet no assault, within the meaning of the statute, committed.

Judgment reversed.

By the Court.

Thereupon, this case came on for further consideration as to the order here to be made. Section 11, chapter 8, title 2, penal code (74 Ohio L. 360), provides that “ upon the hearing of petition in error, the court may affirm the judgment or reverse it, in whole or in part, and order the accused to be discharged or grant a new' trial.” In our opinion, the verdict having failed to respond to the whole indictment in such manner as to authorize the court below either to sentence the accused or' to order his discharge, it was the duty of the court, on its • own motion, to set the verdict aside, and to order a new trial. The State v. Arthur, 21 Iowa, 322 ; The State v. Duncan, 2 McCord, 129 ; 1 Bishop Cr. Pro., § 1016.

It is therefore now ordered that the verdict be set aside,, and that a new trial on the indictment be granted. Beheimer v. The State, 20 Ohio St. 572.

Ordered accordingly.

Boynton, J.,

dissenting. I think the accused was well convicted, by the verdict returned, of an assault with intent to • commit a rape, and, therefore, do not concur in the reversal of the judgment. I especially dissent from the order remanding the cause for a new trial on the charge of rape, as upon that charge the accused was in terms acquitted. The pi’inciple of Beheimer’s case, 20 Ohio St. 572, does not apply. There the accused moved to vacate the verdict, and for a new trial, and his motion was granted. Here the accused, without his consent, and against his protest, and without any waiver of the rights secured to him by the constitution, is required to submit to another jury the question of his guilt or innocence upon a charge, of which he has been,. by a legally constituted jury, pronounced not guilty.. This seems to me a plain infraction of the constitution.


author: Gilmore, J.

text:
    The Second National Bank of Cincinnati v. Hemingray.
    1. The general rule in equity, as at law, is, that joint debts can not he set off ’ against separate debts, unless there he some special equity justifying it.
    2. If there are such equities, the bankruptcy of the party against whom they exist, is sufficient ground for the allowance of the set-off against . notes not due at the time of the assignment.

      :3. Where a banker induced a firm to continue its deposit account with him, by deceptively holding himself out as being still the holder of several negotiable notes made to him by the principal member of the firm, when in fact he had assigned them as collateral security for a debt; and there was an understanding between the firm and the banker, from the course of dealing between them, that the notes of the individual member wore to be paid through the deposit account of the firm, and which 'he had a right to treat as his own for that and other purposes; on the bankruptcy of the banker — Held, That after satisfying the debt for which the notes of the individual member were held as security, the latter, as against the assignees of the bankrupt, is in equity entitled to set off the firm account against the balance due on the notes.

      ■4. In an action on a negotiable note which the plaintiff holds by assignment before due, in consideration of, and as collateral security for a loan made by him to the insolvent payee, against whom the maker is entitled to an equitable set-off to the note; the plaintiff will be limited in his recovery against the maker to the amount of the debt which the note secures, and will not, in addition thereto, be allowed the amount of his attorney’s fees in prosecuting the action.
    Error to the Superior Court of Cincinnati.

      Lincoln, Smith £ Stephens, andl?. S. Throop, for the bank.

      Matthews, Ramsay and Matthews, for Hemingray :
    Irrespective of the checks given by Hemingray & Co., .and irrespective also of the facts, claimed by us, to entitle Hemingray to use the whole credit balance in the bank ac•count of Hemingray & Co., in payment of his notes to Homans, there is also a distinct and independent ground for insisting that Hemingray is entitled to meet the claim upon the overdue note with so much of that bank account .as is necessary to pay it.
    It is set up in the answer that when that note became ■due, on the fourteenth day of July, 1869, Hemingray & Co. had on deposit with Homans more than enough to pay it, .and had agreed with Hemingray to do so, out of that deposit, if necessary and Homans required it, and so notified him ; but that firm, having other occasions for the money, •requested Homans to permit it to lie over unpaid for a .short time, for their convenience, which Homans was willing to do; and thereupon it was agreed, between Homans and Hemingray & Co., that the amount due on said note should be considered and treated as a loan by Homans to the firm on call, the note being retained merely as evidence and security.
    By this transaction, in equity, the firm of Hemingray & Co. became the principal debtors, and Hemingray’s individual liability on the note became and continued merely a collateral security; and the surety, being sued, clearly has a right to set up, by way of defense, whatever would be a bar to the suit, if it had been brought against the principal. In other words, the 'real debt is extinguished by canceling an equal amount of the deposit in the bank credit, and that, by necessary operation of law, releases all securities for the debt.
    3. But there is a larger and broader ground, covering a defense not only to the note overdue at the time of the notice of the assignment to the plaintiff in error, but all the notes.
    It is that by the course of dealing between Hemingray, his firm, and Homans, there became vested in Hemingray, in equity, a right to appropriate the entire balance of the bank account of the firm to the payment of these notes, and thus make it an equitable set-off. Greene v. Dorling, 5 Mason, 201; Downan v. Mathers, Prec. Ch. 580, Kerr on Inj. 64, ch. 4, § 5; Cochrane v. Greene, 9 C. B. N. S. 448; Clark v. Cist, Cr. and Ph. 154; Miller & Co. v. Florer, 15 Ohio St. 149; Wagner v. Stocking, 22 Ohio St. 302; Brewster v. Norcross, 17 N. J. Eq. 219 ; Downer v. Dana, 17 Vt. 518; Cavindish v. Geaves, 24 Beav. 163; Lewin on Trusts,454, ch. 24, § 1; Watson v. Railroad, 43 N. Y. 419 ; Smith v. Fox, 48 N. Y. 674.

      William, F. Jones, also for Hemingray,
    urged that the case shows sufficient ground for the allowance of the set-off'. 2 Hillard on Contracts, § 39, p. 278; Gray v. Rollo, 18 Wall. 629; Raleigh v. Raleigh, 35 Ill. 512; Waterman on Set-off § 383, note; Brewster v. Norcross, 17 N. J. Eq. 219; approved in Wagner v. Stocking, 22 Ohio St. 302 ;
      Wallenstein v. Selizman, 7 Bush, 175 ; Hoffman v. Zollinger, 39 Inch 46.

      Hoadly, Johnston § Colston, for the trustees of Homans:
    As to these notes, there could be no set-ofi against Ho-mans, much less against his trustees, under the 43rd section of the bankrupt act. The only possibility of making them available by way of set-off against Homans, lay in his holding them until maturity.
    A claim not yet due can not be canceled by set-off. Code- §§ 26, 97, and 99; Fuller v. Steiglitz, 27 Ohio St. 355; Graham v. Tilford, 1 Metc. (Ky.), 112; Walker v. McKay, 2 Metc. 294. For there is no mutuality in such a case. Before the maturity of the second note, ITomans could not present it to Hemingray, and require him to take it up and‘ cancel his claim to its amount. Homans could not object to Hemingray selling and assigning his claim, nor conversely could Hemingray object to a sale of the second and third notes by Homans before their maturity, aud Homansdid so sell them, viz : to his creditors, through the agency of his trustees in bankruptcy.
    It is said that the bankrupt’s trustees stand in the same-position as Homans would. This is true as to defenses inhering in and adhering to the transaction, but not as to set-offs, except so far as set-offs are permitted by the bankrupt law. A fortiori, it is not so as to relief obtained by action, as in the case of marshaling assets, and the like. Marshaling assets is not a right inhering in or adhering to a. transaction, like a defense, but is a remedy administered by action, and liable to be cut off by an assignment even with notice. Thus, in the case where A. has a mortgage on White-acre and Blackacre, and B. a junior mortgage on Whiteacrealone, undoubtedly, B. has the right, by action, to compel A.. to exhaust Blackacre, so that he may have his debt paid out: of Whiteacre. But this right will be defeated by a third: mortgage to C. of Blackacre, or of both Whiteacre and! Blackacre, even with notice of the prior mortgages. This-because it is not an equity inhering — not a defense — but a mere remedy had by action, and depending on the facts at the time of suit brought.
    With regard to the claim to make a set-off because of Homans’ insolvency, as to the second and third Hemingray notes, this is not an equity arising before petition filed, but is an independent equity available by action, not adhering to a constituting part of the transaction, and can not be , used to defeat the prior right of Homans’ trustees. The-claim for set-off was not made until after the petition was filed in voluntary bankruptcy.
   Gilmore, J.

It has heretofore been decided in this case,, that as between the Second National Bank and Hemingray,, no legal right to set-off existed in favor of the latter. 31 Ohio^St. 168.

We were not aware, at that time, that it was necessary to consider the equitable defenses made by the pleadings in the case, not knowing that the collaterals held by the bank, as security for Homans’ indebtedness to it, would be more than sufficient to satisfy such indebtedness.

But we are now advised, that pending the litigation in this case, the bank collected all the other available col-laterals that it held and applied the proceeds as payments upon the debts secured by them; and that, since the former decision, the bank has collected from Hemingray, on his notes which it held as collaterals on Homans’ indebtedness-to it, a sum sufficient to satisfy the balance of the debt, and that there still remains unpaid, upon Hemingray’s notes, several thousand dollars to which the bank has no claim, it now being simply the holder of the notes for the benefit of the parties interested in the balance remaining unpaid upon them.

Hemingray claims that he is entitled, in equity, to set-off against such balance, certain claims which he alleges he holds against Homans.

The assignees in bankruptcy of Homans claim the balanee due upon the notes for the benefit of his creditors. They are now the only parties to the principal controversy.

Only the facts necessary to an understanding of the point then decided were stated in the previous report of the case; and a further statement of the facts becomes necessary to an understanding of the grounds upon which the equities of the parties depend.

As disclosed by the record, they are substantially these:

Homans was doing a banking business in Cincinnati, in the name of B. Homans, Jr. & Co., but in fact it was Ho-mans alone, for he had no partner or partners in the business. Hemingray, Evans, aud Eoley were partners, as R. Hemingray & Co., and were engaged in a manufacturing business in Kentucky, having a sale and business house in Cincinnati. Ilemingray’s interest in the firm was five-eighths, and Evans’ and Eoley’s each three-sixteenths, and they each owed Hemingray about $1,900, on account of the purchase of their interest in the firm. Hemingray attended exclusively to the manufacturing establishment in Kentucky, while Evans took the supervision of the house and business in Cincinnati.

It does not appear that Hemingray and Homans had any 'business transactions with each other previous to July, 1868. On the 11th of July, 1868, Hemingray purchased of Homans real estate, situate in Kentucky, at the price of $17,000, and gave his notes, bearing interest therefor as follows; one for $5,000 in ninety days, and three for $4,000, •each due in one, two, and three years from date respect- • ively, the last three of which are now in controversy. Erom the date of that transaction, at least, if not before, the only bank account of the firm of R. Hemingray & Co. was kept with Homans, in Cincinnati, in the firm name, and in addition to the firm business, which was done through this account, all the individual collections of Hemingray were also made, and all his individual liabilities were also paid by checks drawn on the firm account, Hemingray having no individual bank account anywhere. The first note, of $5,000, was paid to Homans at its maturity, by a check drawn by Evans on the firm account, Homans voluntarily making a rebate of part of the interest that had accrued on the note, on account of the firm deposits, with which the note was paid, having been some time in his bank.

On the 31st of Mlay, 1869, Homans assigned and pledged the three remaining notes to the Second National Bank, as collateral security oil a loan, of which fact Hemingray was not advised till after Homans’ suspension, as will be more fully stated hereafter. The usual bank notice of the maturing of the second note, on the 14th of July, 1869, was sent by Homans from his bank to R. Hemingray & Co. After receiving the notice, and -before the note fell due, Evans, after consultation with Hemingray, went to Ho-mans’ bank, and stated to him that his firm was building, and might need their funds for that purpose, and proposed to pay the interest then due on the note, and renew it for a short time; but if it would not suit Homans to do so, he would pay it by a check, on the firm account. Homans said it was all right, that the note could lie over without payment of interest or renewal as a call loan, with an understanding “ that they should go on and deposit there and lift the note at any time.” The usual banking transactions continued between the parties from the date of that arrangement, till 10 o’clock a. m., August 26, 1869, when Homans suspended and closed his bank.

At that date there was deposited in the bank, to the firm account of R. Hemingray & Co., $9,425.89, which had been reported to them, and in addition thereto the sum of $266.30, the proceeds of a collection of which they had not been notified. Homans had also held, for collection, the note of T. J. Allen, for $1,000, which was the individual property of R. Hemingray. Homans had sent this note to the First National Bank of Covington, for collection, when it was collected and credited to Homans’ account on the day of his failure, and reported to Hemingray and Co., by Homans, on the next day, and the amount credited to their account in pursuance of the usual course of dealing between the parties.

Captain Evans, the managing partner in Cincinnati, of the firm of R. Hemingray & Co., had an individual deposit account in Homans’ bank, on which there was, at the time the bank was closed, a balance of $1,803 in. his favor. This account was in no way connected with the business of the firm, but was kept in connection with, and in closing up the steamboating business in which Captain Evans had been engaged before becoming a member of the firm of R. Hemingray & Co.

Hemingray & Co. first heard of Homans’ failure between twelve and one o’clock, on the day it occurred. They immediately took the advice of counsel, and then transferred the amount due them on the firm account, in the bank, of which they had knowledge, being $9,425.89, to Hemingray, individually, by a check for the amount, which was charged to him on the books of the firm, and for which, it is understood between the members, he is unconditionally liable to the firm, and a like check was given for the $266.30, when they were advised of its collection, on the next day. At the same time (August 26) Captain Evans transferred to Hemingray the balance due on his account ($1,803) in the bank, to be used by the latter as a set-off against his notes, then supposed to be in Homans’ hands; and Captain Evans does not expect to hold Hemingray for the amount unless the set-off is allowed to be made.

Shortly after obtaining the checks, probably between tw7o and three o’clock, p. m., Hemingray went to Homans’ bank for the purpose, but did not present the checks, because “ the house was shut up.” About 'four o’clock, p. m. of the same day, Hemingray went to Homans’, in Covington, and then learned from him that the notes in controversy had been transferred to the Second National Bank, which was the first knowledge or intimation that he or his firm had of the fact. Between seven and eight o’clock, on the same evening, Homans made an assignment to Theodore Cook, under the state insolvent law; and afterward, on the 13th of September following, he was forced into bankruptcy, and his trustees are parties to the controversy here.

On this general statement of facts, in connection with such as maybe specially stated hereafter, the equitable rights of the parties depend.

The legal title to the notes being in the Second National Bank at the time of the assignment in bankruptcy, the assignees thereby succeeded to all the equitable rights of Homans, in the balance due on the notes after satisfying the claim of the bank, and nothing more. They stand in Homans’ shoes as to this controversy, and any equitable relief that Hemingray would be entitled to as against Homans if he was insolvent and suing for such balance, can be asserted against his assignees.

First. Before noticing the controverted items of set-off, I may say there is one item of one thousand dollars that is not controverted. It is the proceeds of the T. J. Allen note, which was the individual property of Hemingray. It was collected by Homams on the day of his failure, and credited to the account of R. Hemingray & Co., as was the custom in such cases, and reported the next day.

The right of Hemingray to have this item set off in this -case is so manifest, that counsel for the trustees, in their argument, “ admit that the collection from Allen should be set off against our client’s claims.” See Miller v. Florer, 15 Ohio St. 148.

With the exception of this item, it is contended that none of the others can be set off against the separate debt of Hemingray, because (1) the firm account of R. Hemingray & Co. is joint, and (2) because the assignment of the several deposit accounts of Hemingray by the checks, were void under the bankrupt law.

We will first ascertain the equitable rights of the parties, without reference to the checks.

The general rule in equity, as at law, is, that joint debts ■can not be set off against separate debts, unless there be .some special equity or equities to justify it.

Such special equities may arise under circumstances of fraud; or where there are a series of transactions in which joint credit is given with reference to the separate debt; or where the mode or course of dealing is such as to furnish a presumption that there was an agreement that the- mutual dealings on each side, and independent debts, were to be set off against each other, and that, without such right of retaining against each other, the parties would not have-continued dealing with each other. Greene v. Darling, 5 Mason, 201; Downam v. Mathers, Prec. Ch., 580; Brewster v. Norcross, 17 N. J. Eq. 219.

Second. There are grounds upon which we think Hemingray is entitled to the relief he asks, not only as to the note due, but also as to those not due at the time of Ho-mans’ failure and assignment.

If Hemingray, as against Homans or his assignees, has a right to set off the amount due on the deposit account of the firm in Homans’ bank, against the balance due on the notes, which will be noticed presently, then the insolvency of Homans is a sufficient ground for the allowance of the set-off in equity, even as against the notes not due at the time of his failure and assignment. Pomeroy on Remedies and Remedial Rights, § 163; Waterman on Set-off, § 131; Smith v. Felton, 43 N. Y. 419.

This being so, we think that Homans induced the firm of Hemingray & Go. to continue the very deposits in question with him under circumstances of deception amounting to a fraud; and that this, in connection with the course of dealing between the parties, is sufficient to raise those special equities in favor of Hemingray, which entitle him to set off the firm deposit account against the balance due to Homans or his assignees on any or all of the notes.

The deception practiced by Homans consisted in holding himself out to Hemingray and the firm of Hemingray & Co., as being the owner and holder of the notes in question, by sending the usual bank notice of the maturing of the note falling due in July, 1869, from his bank, and he admits, in-his testimony, that this was an indication to Hemingray,, and also to his firm, to which the notice was sent, that the note was then in his bank, although he had parted with the notes six weeks before. When Evans called and arranged with Iiomans for an extension of time on the note then falling due, the latter did not disclose, as he should have done, the fact that he had assigned the note to the Second National Bank, but on the contrary acted in such a way as to leave Evans to infer that he was still the owner and holder of the note. We think the confidence which Hemingray and his firm had in Homans was measureably due to their belief that he still held the notes, and that they were thereby induced to continue their deposits with him. On his examination as a witness, Homans, was asked this question : “ Did you not withhold from Captain Evans at that interview, and withhold from Mr. Hemingray up to the time of your failure, information that you had parted with Hemingray’s notes, for fear, if that fact became known to them, E. Hemingray & Co. would withdraw their deposits from your bank ?”

His answer was: “Yes.” We think his fears as here indicated were well founded; and that if the firm had known that he had assigned the notes as a security for a debt, it would have alarmed them, and they would at once have withdrawn not only a sum sufficient to pay the note then due, which was the subject of the special arrangement, but also the entire deposit account of the firm, and thus the firm and Hemingray would have quietly secured a sum greater than that now in litigation. The deception was clearly intentional on Homans’ part, and greatly prejudicial to Hemingray and his firm. On this state of facts alone, a court of equity would perhaps be authorized to grant the relief asked in respect to the note past due; but it is unnecessary to consider this point separately, as we think the deception which was practiced affected Hemingray and liis firm prejudicially as to the entire amount of the deposit account of the firm; and that the relief sought ought, therefore, to extend not only to the note past due, but also to those not due at the time of Homans’ assignment, if there are additional facts which will authorize a court of equity to prevent gross injustice, by setting off against Ilemingray’s individual notes, the deposit account of the firm to an amount necessary to extinguish the balance due on the notes. We think there are such additional facts, i.e. that the course of dealing between the parties; the predominant interest of Hemingray in the firm; that he kept no individual bank account anywhere; that all his individual collections were made, and all his individual debts paid through the firm account; that the first note of the series had been paid through the firm account, and a rebate of interest on the note voluntarily allowed by Homans, on account of the firm deposit; that the payment of the secoud note of the series through the firm account had beén actually arranged for; that the firm considered it their duty to take care of the individual obligations of Hemingray, all of which go to show that there was an implied agreement between the members of the firm, that Hemingray might treat the bank account as his own in the payment of his individual debts, all of which was known to, acquiesced in, and acted upon by Homans. Therefore, although the deposit account is joint in form, we feel justified in regarding it as a separate demand in favor of Hemingray against Homans, which may be set off in equity against the balance due to Homans or his assignees on all the notes, without respect to the checks by which the account was transferred to Hemingray. And this renders the consideration of the questions raised, in reference to the effect of these checks upon the rights of the parties under the provisions of the bankrupt law, unnecessaiy.

Third. With reference to the deposit account that Captain Evans had in Homans’ bank, and which he assigned to Hemingray, it is sufficient to say, that the record shows that the proceeds of the Allen note, and the deposit account of the firm of Hemingray & Co. are more than will be required to set off the balance remaining due upon the notes of Hemingray, which renders the consideration of this item of set-off unnecessary. We therefore express no opinion upon it.

Fourth. The SecondNational Bank, afterhavingbeen paid the full amount of Homans’ debt to it, which was collaterally secured, in part, by the notes in question, now moves ihe court that it may be allowed to collect from the balance yet due on the notes, an additional sum equal to the amount of the fees of its attorneys in the prosecution of this suit.

The motion must be denied.

In an action on a negotiable note which the plaintiff holds by assignment before due, as collateral security for a loan made by him to the insolvent payee,-against whom the maker holds an equitable set-off’ to the note, the plaintiff will be limited in his recovery against the maker to the amount of the debt which the note secures; and will not, in addition thereto, as against the maker, be allowed the amount of his attorneys’ fees for prosecuting the action.

In other words, as against the maker, who has a valid ■equitable defense to a note in the hands of the payee, if the latter pledges it as security for a debt, the pledgee can ■only be regarded as a bona fide holder of the note, to the extent of his interest at the time he acquires the title, or has notice of the defense to it. If the pledgee sues the maker upon the note, the latter may attempt a complete defense, without, in case of failure, thereby incurring a liability to pay to the pledgee anything in addition to the amount of the debt secured by the note.

The set-off as to the proceeds of the Allen note, and the -deposit account of the firm, is allowed in favor of Hemingray against the assignees in bankruptcy of Homans. The motion of the Second National Bank to be allowed the attorneys’ fees in this case is overruled.

Judgment accordingly.

Boynton, J., dissented from the allowance of the set-off', •except as to the amount of the note falling due July 14, 1869.


text:
    Wheeler v. The State.
    Oi A.'s trial for a crime, he relied on insanity as a defense, and as evidence tending to prove the defense offered a record from the probate court showing that four yeai's previous to the commission of the alleged, crime an inquest had been held in that court, and that he had been ad. ■ judged insane and confined in an asylum. Meld, that the evidence was. admissible.
    Error to the Court of Common Pleas of Allen county.
    At the June term, 1878, of said court, Carlin Wheeler-was indicted for burglary and larceny, alleged to have been committed in the preceding March. At the November term,, in the same year, he was found guilty as charged, and sentenced to the penitentiary. On the trial he relied on insanity as a defense ; and, as evidence tending to prove it, offered, an authenticated transcript of a record of the probate court of that county. The record consists of an affidavit, made. December 5, 1874, to the effect that Wheeler was then insane ; the certificate of a physician, setting forth the same-fact, and giving a detailed statement of the case; the order of the probate court, made the same day, setting forth that an inquest of lunacy had been held by the probate court on-the same 5th day of December, 1874, concerning said Wheeler; that, having heard the testimony of witnesses, and being fully advised in the premises, the court found, that he was then insane, and a proper person to be admitted into the insane asylum at Dayton, and that his insanity was of two years’ duration. It further appeared from the-record that Wheeler had been conveyed to the asylum, in pursuance of the order, and delivered to the superintendent.
    Objection having been made to the record, the court of common pleas excluded it, and Wheeler, by his counsel,, excepted.
    This court granted leave to file a petition in error, and the sole ground of reversal relied on is the action of the-court in excluding the record.

      Cunningham Brotherton, for plaintiff in error.

      Isaiah Pillars, attorney-general, and H. 8. Prophet, prosecuting attorney, for the state.
   Okey, J.

Under the territorial government, jurisdiction to hold inquests concerning persons alleged to be insane-was vested in the judge of probate. 1 Chase, 127,191,339. By the act of 1805, the jurisdiction was vested in the court of common pleas. 1 Chase, 489. In 1815 it was transferred to justices of the peace (2 Chase, 869), where it remained,, except as to non-residents (2 Chase, 1009), until 1838, when it was vested ip the associate judges. 1 Curwen, 407. In the proceeding under all these statutes, the question of sanity was tried by a jury, consisting, in some instances, of five men; in others of seven men; and in still others of twelve men. It was analogous to a commission in the English practice and the practice of many states.

In 1850 the ancient feature of the proceeding — the determination of the question by a jury — ceased to exist in this state; but the effect of the adjudication remained the-same. By a statute passed in that year, the power to hold such inquests was vested in two justices of the peace. They were required to hear evidence, and set forth in writing whether the person complained of was sane or insane,, and the history of the case as developed in the evidence.. 2 Curwen, 1554.

While the act of 1850 was in force, jurisdiction was conferred by the act of 1852 (3 Curwen, 1717) on the probate-court “ in inquests as to lunatics, insane persons, and idiots;” and by the probate code of 1853 (3 Curwen, 2041),. re-enacted in 1854 (4 Curwen, 2630), exclusive jurisdiction was conferred on that court “to make inquests respecting-lunatics, insane persons, idiots, and deaf and dumb persons, subject by law to guardianship.”

The act of 1850 was repealed in 1856 (4 Curwen, 2740),. .and the latter act remained in force, except as modified by ■other acts (see 67 Ohio L. 43), until 1878, when it was repealed and re-enacted. 75 Ohio L. 64.

The act of 1856 provided that before any person can be admitted into an insane asylum, the judge of the probate court “ shall proceed to examine the witnesses in attendance, and if, upon hearing of the testimony, such judge .shall be satisfied that the person so charged is insane,” proper steps shall be taken for his admission to such asylum. The finding, it will be seen, was- in effect the same as where a guardian was appointed. §§ 41, 63. It was an .adjudication concerning the status of a person by a court clothed with jurisdiction, and, except as otherwise provided by statute, the record imported absolute verity that he was then a proper person to be confined in an insane asylum. Shroyer v. Richmond, 16 Ohio St. 455. And, while the proceeding in this state differs from an inquisition of lunacy in the English practice and- in the practice of many states (Shelford on Lunatics, ch. 4; 2 Barbour’s Ch. Pr., book 5, ch. 6), the effect of the inquest, as to the matter now before us, is the same.

Inquisitions of this sort have been admitted in evidence in numerous cases, some of which were between private parties, and others concerned the public. 1 G-reenleaf’s Ev., § 356; 2 lb., § 371; Ereeman on Judgments, § 606; Banker v. Banker, 63 N. Y. 409 ; McGinnis v. Com., 74 Pa. St. 245; Lancaster Co. Nat. Bank v. Moore, 78 Pa. St. 407. In 2 Phillipps’ Ev. *266, it is said : “ An inquisition of lunacy is evidence on the trial of an indictment to show that the prisoner was insane when he committed the offense.” To the same effect is Sharswood’sStarkie’s Ev. 407*; Shelford on Lunatics, 74.

Inquests of this .character are analogous to proceedings in rem, affecting the general and public interest, and no one can strictly be regarded as a stranger to them. And such condition of things as the insanity of a party being shown, there is a presumption of more or less force, according to circumstances, that the same condition continued. Nor does the time which may have elapsed since the inquest was. held affect the question of its admissibility (Sergeson v. Sealy, 2 Atkyns, 412), though, of course, it may have great force on the question of the weight of the evidence,

Ordinarily, such inquisitions are not conclusive, but only prima facie evidence of incapacity, as will be seen from the authorities cited; but, on a question like that in issue here, it is manifest they can not be regarded as even prima fade evidence. A person who is a fit subject for confinement in an insane asylum does not necessarily have immunity from punishment for crime; and the length of time between confinement in the asylum and the commission of the act charged, the nature of the crime, and other facts, may render such inquisition of little weight as evidence; but its weight is for the jury in each ease.

The only criminal case cited by Phillips, in support of the passage quoted from his work, is Rex v. Bowler. That was a case tried before Gibbs, G. J., and Le Blanc, J., at Old Bailey, in June, 1812. It is fully stated in 3 Starkie’s Ev., pt. 4, p. 1704*, and Shelford on Lunatics, 590. An-inquest of lunacy was offered and admitted; but the defendant was convicted and executed, and it is manifest, from the reports of the case, that the record was admitted as evidence merely tending to prove insanity.

Leggate v. Clark, 111 Mass. 308, is supposed to be an authority against the competency of the evidence. In that case, it appears that the proceedings of the judge of probate, committing Leggate to an insane hospital, was admitted in an action involving the validity of a deed which he had executed, as prima fade evidence of insanity. The Supreme Court reversed the judgment, on the ground that while the record of a proceeding for the appointment of a guardian for an insane person would be admissible in such a case, the order in question was not admissible, as it “ is not designed to fix his status.” But, as we have seen, a probate judge in this state is required to make, on hearing, precisely such an adjudication as is proper and sufficient in case of the appointment of a guardian, and. hence the adjudication determines, to this extent, the status of such person.

In that case, some stress is placed on a provision, in the statute, requiring notice to the supposed lunatic. In England, where there is the right to traverse, it seems notice is not required, though Mr. Shelford remarks: “It seems extraordinary that such a rule as this should still prevail.” Shelford on Lun. 131 (v.) But in this country, notice to the supposed lunatic, in some form, has been generally regarded as indispensable, with whatever view the inquest may be held; and it has been said that “ the benignant principles of the common law would require the notice to be given.” Allis v. Morton, 4 Gray, 63; Matter of Tracy, 1 Paige, 580; Matter of Pettit, 2 Paige, 174; Matter of Russell, 1 Barb. Ch. 38; Lackey v. Lackey, 8 B. Monroe, 107. I do not-see why the finding would be any the less in the nature of an adjudication in rem, from the mere fact that notice is expressly provided for. But the court was simply giving a construction to the statutes of that state, with the provisions of which I am- not very familiar, and doubtless the decision rests on satisfactory grounds.

Our attention has been called to the fact that in The State v. Turner, Wright, 20, a coroner’s inquest, offered by the state, was excluded. We have no doubt the decision was correct for the reason given, and others. A coroner’s in•quest with us is of such a nature, that .to admit it, against the objection of the accused, would violate that clause of the bill of rights which entitles him to meet the witnesses face to face. The decision in no way affects the question in this case.

Insanity seems to be a defense amply provided for by .-statute in this state. It may be relied on, before indictment, by one charged with crime, after indictment and before trial on the merits, and on the final trial. 74 Ohio L. 87, 103. In this day, when the tendency is to admit rather than exclude testimony, we should hold this evi■denee admissible if the question could be regarded as doubtful; but its competency rests on substantial grounds. The inquest may have been held in another state, or other facts may render it difficult to produce the oral testimony. Persons who are not to some extent deranged are rarely ■sent to an asylum. The danger that the evidence will have undue weight is small. The fact that the accused was confined in an asylum is confessedly competent evidence in his favor; and he may offer proof of the insanity of.his kindred. In Blackburn v. The State, 23 Ohio St. 146, where it -was claimed that the deceased came to her death by suicide, this court held that evidence to show that six years previous to her death she was of a melancholy condition of mind, and predisposed to, and threatened to, commit suicide, was competent. Does not the evidence offered in this case rest on even more satisfactory ground ? However that may be, we think the evidence offered and excluded was competent, as tending to prove the defense relied on. The physician’s certificate could not properly be admitted, but the bill of exceptions, fairly construed, discloses only an offer of the adjudication, showing that on December 5, 1874, "Wheeler was so far insane as to be a proper subject for confinement in an insane asylum, and the official return showing his actual confinement.

Judgment reversed, and cause remanded for a new trial.


text:
    Sibila v. Bahney.
    1. Where a variance between the allegations of the pleading and proof is not material within the meaning of section 131 of the code, the fact that the pleading was not amended to conform to the proof, as provided for by section 132, will not constitute ground for the reversal of the judgment on error.
    2. In an action brought under the seventh section of the act to provide against the evils resulting from the sale of intoxicating liquors, as amended April 18, 1870, it is not necessary that the liquor be sold in violation of the act of 1854. If sold in violation of any act prohibiting the sale, or furnished in violation of the act of 1866 (S. & S. 748,', the action will lie.
    3. The provision of said amended section, which creates a liability on the part of the seller for an injury resulting from intoxication, to which the-liquor unlawfully sold or furnished by him contributes only in part, is-not in conflict with the constitution.
    4. In an action brought by a married woman, under said amended section, for an injury to her means of support in consequence of the intoxication of her husband, it is not error for the court to refuse to charge that “if the jury award the plaintiff any amount by way of exemplary damages, they should not consider the fact, if such they find it to he, that certain of the illegal sales were made on Sunday.”
    5. ’Where it appears in such action that the damages awarded by the jury are excessive, the court on error, on a remittitur of such excess, may affirm the judgment.
    Error to the District Court of Stark county.
    The action below was brought by the defendant in error,. Rebecca A. Bahney, wife of Joseph Bahney, against the plaintiff in error, Nicholas Sibila, under the 7th section of the act to provide against the evils resulting from the sale .of intoxicating liquors, as amended April 18, 1870. She-alleged in her petition, among other things, that “ on and after the 5th day of July, a. d. 1870, and from that time until the 24th day of December, a. d. 1872, said defendant did unlawfully cause the said Joseph Bahney to become and be habitually intoxicated, by the said defendant, at said county of Stark, on said 5th day of July, A. D. 1870, and at divers times from that time to the said 24th day of December, a. d. 1872, at said county, willfully, knowingly, and unlawfully selling and giving intoxicating liquors to the said Joseph Bahney, to-be by said Joseph Bahney drank on the premises -where sold, the said Joseph Bahney, as the said defendant well knew, being then and all that time in the habit of getting intoxicated. That in consequence of said habitual intoxication so caused by said defendant, the plaintiff, at and during the time aforesaid, was injured in her present and future means of support,-and especially in this, that,, while so intoxicated, and by reason of his habitual intoxication, so caused by said defendant, said Joseph Bahney,. at various times, from the said 5th day of July,-1870, to the-time of his death, on the said 30th day of December, a. d. 1872, greatly neglected his business, squandered his time,, spent his money in drinking intoxicating liquors, and gambling, and losing large sums of money in gambling,, while so intoxicated ; and said Joseph Bahney, by said intoxication, so caused by said - defendant, as aforesaid, was. much impaired and debilitated in body and mind, so that, he could not and did not attend to his business ; and by reason of said habitual drunkenness of her said husband, caused as aforesaid, and during the period aforesaid, the said, plaintiff says she was greatly injured in her present and future means of support, and to her great damage.
    “ And so the plaintiff says that said defendant, by selling- and giving intoxicating liquors, as aforesaid, at the time and place aforesaid, and during the time aforesaid, then and there, and thereby, causing the habitual intoxication of the said Joseph Bahney, injured and damaged the plaintiff in her present and future means of support, in the sum of five-thousand dollars.”
    The defendant in answer to the petition admitted the marriage relation as alleged in the petition between the plaintiff and Joseph Bahney, but denied all and singular the remaining allegations of the petition. The first trial resulted in a verdict and judgment for the plaintiff below for $2,500. The-second trial, taken by defendant below under the statute then in force authorizing it, resulted in a verdict of $5,000. The defendant below moved the court to vacate the judgment, and to grant a new trial for the following reasons :
    1. That the court erred in the trial of the cause in permitting certain evidence offered by the plaintiff to. be introduced and given upon the trial to the jury against the-objections of this defendant.
    2. That the court erred in the trial of the cause in rejecting evidence offered by this defendant.
    3. That the court erred in its charge to the jury.
    4. That the court erred in refusing to charge the jury as-requested by the defendant.

      5. That the verdict of the jury is against and contrary to the weight of the evidence.
    6. That the damages given by the jury are excessive,
    This motion was overruled, and a judgment entered on the verdict, which was afterward affirmed by the district ■court. To reverse the judgment of affirmance, and the judgment of the court of common pleas, is the object of the present proceeding in error.
    From the bill of exceptions taken at the trial, setting nut all the evidence, it appears that the court permitted the plaintiff below, against the objection of the defendant, to give evidence of sales of intoxicating liquor to be drank ¡by the plaintiff’s husband at places elsewhere than on the ¡premises where sold; also of sales made on Sunday, in violation of the act of February 17, 1831 (1 S. & C. 448, § 2); also, that the defendant sold to other persons, for and by •whom the liquor was furnished to Bahney, at the bar of the defendant, to be there drank by him. It also appeared in evidence, that said Bahney drank at other saloons during the period of time stated in the petition, which caused in.part the intoxication resulting in injury to the plaintiff’s means of support. The evidence also tended to show that 'during all said period Bahney was in the habit of getting ■■intoxicated, to the knowledge of the defendant.
    The court, among other things, charged the jury as follows :
    “ The next provision of law to which I will call your attention, is the second section of the act February 17, 1831. By this section it is made unlawful and punishable for any tavern-keeper, or other person, to sell or barter any spirituous liquors on the first day of the week, commonly called Sunday, except to travelers.
    “By the act of April 5, 1866, it is made unlawful and punishable for any person to furnish to any person, who is .at the time intoxicated, or in the habit of getting intoxicated, any intoxicating liquors whatsoever, unless given by a physician in the regular course of his practice.

      “ This law, you will observe, makes it unlawful to furnish 'intoxicating liquors, contrary to its provisions.
    “ The previous provisions of law, to which I called your ■attention, made it unlawful to sell contrary to their provisions. I call your attention to this provision as to furnishing liquor, for the reason that there is some testimony in ■the case tending to show that persons other than Joseph Bahney purchased liquor of the defendant, part of which was furnished to said Bahney by the defendant.
    “If Bahney was so furnished with intoxicating liquor by the defendant, Bahney being at the time, to the knowledge of defendant, intoxicated, or in the habit of getting intoxicated, the act or acts of so furnishing liquor were unlawful.
    “Second. Did the defendant, by means of the liquor or liquors so unlawfully sold or furnished by defendant to the said Joseph Bahney, cause the intoxication of said Bahney?
    “ The defendant can only be made responsible for such •instances of intoxication of the plaintiff’s husband, as may have been caused in whole, or in part, by liquors which he may have so illegally sold or furnished.
    “ If said Bahney was, on a particular occasion or occasions, intoxicated during said period, to which intoxication, on said occasion or occasions, the liquors of the defendant, so sold or furnished to Bahney, did not contribute in whole or in part, the defendant is not responsible for such instance or instances of intoxication. But, if defendant’s liquor, so sold or furnished to Bahney, during said period, in part caused the intoxication of said Bahney, the defendant would be responsible for such instance of intoxication, although liquor, which was not obtained from defendant, also, in part, caused, or contributed to, such instance of intoxication. And if the liquor so sold or furnished by defendant to Bahney, caused the intoxication of Bahney, ■either alone or in connection with liquor not obtained from defendant, in a sufficient number of instances to satisfy you that Bahney was habitually intoxicated by such liquor of defendant, acting alone, and also acting with such liquor of others, you should find that defendant caused the habitual intoxication of Bahney.
    “ But if the liquor of defendant, so sold or furnished,, caused, in whole or in part, the intoxication of said Bahney in a less number of instances than is required to make-him habitually intoxicated, yet, if you find that defendant’s liquor, thus sold or furnished to Bahney, caused his intoxication in one or more instances, it would be sufficient, on this second point, to authorize you to find for plaintiff. Whether the intoxication, which may have been thus caused by defendant, was in but a single instance, or occasional, or habitual, will be an important subject of consideration upon the next point, that of alleged injury to the-plaintiff’s means of support, or in assessing, should you reach that point, the amount of damages.
    “ If you find that Bahney was intoxicated in any instance or instances, as to which you are not satisfied that the defendant’s liquor, so sold or furnished to Bahney, caused the intoxication, in whole or in part, such instances of intoxication can only be considered by you upon the question, whether Bahuey was in the habit of getting intoxicated, and you should not hold defendant responsible for any injury to the plaintiff which may have resulted from such intoxication.”
    The defendant, by his counsel, excepted to the following parts of the charge:
    “ But if defendant’s liquor, so sold or furnished to Bahney during said period, in part caused the intoxication of said Bahney, the defendant would be responsible for such instance of intoxication, although liquor, which was not obtained from defendant, also, in part, caused or contributed to such instances of intoxication.”
    “And if the liquor so sold or furnished to Bahney caused the intoxication of Bahney, either alone or in connection with liquor not obtained from defendant, in a sufficient number of instances to satisfy you that Bahney was habitually intoxicated by such liquor of defendant acting alone, rand also acting with, such liquor of others, you should find that defendant caused the habitual intoxication of Bahney.”
    And the defendant, by his counsel, also then excepted to "those parts of the charge which permitted the jury to hold the defendant responsible for intoxication caused by the selling of liquor in violation of statutes other than the act of 1854, entitled “an act to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio.”
    And the defendant requested the court to charge as follows :
    “ If the jury award the plaintiff any amount by way of exemplary damages, they should not consider the fact, if such they find it to be, that certain of the illegal sales were made ■on Sunday.”

      Lynch § Day and S. Meyer § Son, for plaintiff in error.

      John Me Sweeney and Anson Pease, for defendant in error.
   Boynton, J.

The seventh section of the act to provide against the evils resulting from the sale of intoxicating liquors, as amended April 18,1870 (67 Ohio L. 101), authorizes a recovery in damages for an injury to person, property, or means of support, resulting from intoxication •caused by a sale or gift of intoxicating liquors, when unlawfully made. Baker v. Beckwith, 29 Ohio St. 814.

The section, as originally enacted, gave a right of action for such injury, only when the same resulted from an unlawful sale. The civil liability created by the act was restricted, in terms, to the person who, “ by selling intoxicating liquors contraryto thisact,” shall have caused the intoxication of the person to whom sold. No liability attached to a giving away, unless done with the intent to evade the provisions of the act, and then such act of giving away was “ to be deemed and held an unlawful selling within the provisions of the act.” ■§ 9. This being the only reference made by the statute of 1854, as originally enacted, to a giving away of intoxicating liquors, and such act constituting in law an unlawful sale, it is very manifest that the legislature, by omitting from! the section as amended the words “ contrary to this act,” and in so enlarging the civil liability as to embrace a. right to recover'damages, where the injury results from an-unlawful giving away, as well as from an unlawful sale, intended to authorize a recovery in such case, without respect, to the particular statute the act of giving away violated. Otherwise, it would be found difficult, upon any just or admitted rules of construction, to maintain the necessity of establishing an illegal sale or furnishing, in order to recover the damages awarded by the statute. We are of the opinion that an injury of the kind for which the statute gives redress — that is, an injury to person, property, or-means of support, resulting from intoxication caused by a sale or giving away of intoxicating liquors,.in violation of any act providing'against it — brings the case within the amended section, and subjects the party thus violating the-statute to the civil liability thereby created.

Hence, the court did not err in directing the attention of the jury to the act of 1831, prohibiting the sale of spirituous liquors on Sunday, and to the act of 1866, making- it unlawful to furnish intoxicating liquors to a person in the-habit of getting intoxicated. But it is said that the court instructed the jury to hold the defendant below responsible-for sales made on Sunday, whether or not they found the-liquor was sold to be drank on the premises, and regardless of the fact of Bahney’s habit of getting intoxicated. We have carefully read the evidence set out in the bill of exceptions, and fail to find an instance where Bahney procured liquor on Sunday at defendant’s saloon aud carried, the same away. Therefore, the instruction, if given and wrong, was not prejudicial to the defendant. Indeed,, all the testimony relating to sales to Bahney on Sunday was quite competent as tending to show a violation of either the first or third section of the act of 1854.

It is also claimed, that the court erred in instructing the-jury, that if other persons purchased liquor of the defendant, part of which was furnished to Bahney by the defendant, Bahney being at the time intoxicated, or in the habit' of getting intoxicated, to the knowledge of the defendant, the act or acts of so furnishing were unlawful. Interpreting this instruction in the light of the testimony to which it evidently referred, we understand the court to have meant, that although the liquor was called and paid for by another, yet it being designed to be drank at the defendant’s bar, by the person calling for it, and Bahney, the defendant knowing Bahney was there to drink the same, and furnishing it for that purpose, such act of the defendant would constitute a furnishing by him to Bahney. This is in entire accordance with the ruling in The State v. Munson, 25 Ohio St. 881. The fact that the person purchasing the liquor was also guilty of furnishing the same to Bahney, does not relieve the defendant’s participation in the illegal transaction of its criminal character.

It is next contended, that proof of sales of liquor not to be drank upon the premises where sold, and of furnishing in violation of the act of 1866, was not warranted under the petition, and that the court erred in receiving the same against the objection of the defendant. To determine the validity of this objection, the ground of the action should be carefully noted. „ The substantial grievance of which the plaintiff complained was an injury to her means of support resulting from the intoxication of her husband, superinduced by the defendant’s act of furnishing him intoxicating liquors unlawfully. The petition charged the defendant with unlawfully selling and giving the liquor to Bahney, thereby causing his intoxication, with knowledge of his habit of intoxication. It was also averred, that the liquor was sold to be drank where sold. This averment was entirely unnecessary, as it was clearly immaterial whether the liquor was sold to be drank where sold or not, so long as the defendant had knowledge of Bahney’s habit of getting intoxicated. A sale of liquor to be drank upon the premises, or elsewhere, must result in intoxication and a consequent injury, before any liability arises under the statute. But where the seller has knowledge that the person buying is in the habit of getting intoxicated, a sale which violates section one of the act of 1854, also violates section three. But section three may be violated without violating section one. The question then amounts to this: Bid the admission of evidence showing sales not to be drank on the premises, clearly competent under the petition had not a particular place of drinking been specified, so affect the substantial rights of the defendant below, as to justify or require the reversal of the judgment ?

Section 131 of the code provides that, no variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon. the court may order the pleading to be amended, upon such terms as may be just.” No action, under this section, was taken or sought at the trial. Where the variance is not material within the meaning of this section, the pleading, may be amended to conform to the proof, without costs. § 132. That the evidence, at the trial, should be confined to the issue, admits of no doubt. The rule is as inflexible since as before the code, that the allegations and proof must correspond. But where the variance between the allegations and proof is such that the court would allow an amendment, under section 132, without costs, to conform the pleading to the proof, the variance can not be deemed so far material under section 131, as to justify a reversal of the judgment. We think the variance, in the present case, was of that character, and that, upon motion, an amendment striking out the allegation that the liquor was sold to be drank where sold, ought to have been allowed, without costs.

Nor do we think a failure to establish habitual intoxication would defeat the right to recover. If the jnry were satisfied, from the evidence, that the plaintiff had sustained'an injury in her means of support, in consequence of the intoxication of her husband during the period of time stated in the petition, caused by the illegal sales of the defendant, she was entitled to recover. The failure to establish habitual intoxication could only affect the measure of damages.

It is next claimed, that the court erred in charging the jury, that if the liquor so sold or furnished to Bahney, in part caused his intoxication, the defendant would be responsible for such instance of intoxication, and that if the liquor so sold or furnished caused his intoxication, either .alone or in connection with liquor not obtained from the defendant, in a sufficient number of instances to satisfy the jury that Bahney was habitually intoxicated by such liquor acting alone, or acting with such liquor of others, that they should find that the defendant caused such habitual intoxication. The objection nrged against the rule here stated, is that it holds one man responsible for the act •of another, and hence is unconstitutional.

We are satisfied that this position is entirely untenable, .and content ourselves with so declaring it, without entering upon an extended argument to establish its unsoundness. The business of the defendant, as conducted by him, being in open violation of the statute, a provision that holds him responsible for an injury to which his unlawful •conduct contributes, can not be said to be in conflict with any right guaranteed by the constitution. See Boyd v. Watt, 27 Ohio St. 259; Henshall v. Ludington, 33 Wis. 107. The weakness of the argument lies in the assumption that the seller is made or held responsible for the act of another. The act for which he is made liable is his act, voluntarily ■committed, in utter disregard of the plain provisions of the statute; an act committed with full knowledge of the risk encountered, and of the consequent liability that may follow, all of which could easily be avoided by conforming liis business to the requirements of the law.

By causing, in conjunction with others,-the injury for which the action is brought, by an act in clear violation of the statute, he becomes a joint tort-feasor, and, as at common law, is liable for the entire damages resulting from such injury.

Nor do we think there was error in refusing to charge that, “ if the jury award the plaintiff any amount by way of exemplary damages, they should not consider the fact, if such they find it to be, that certain of the illegal sales, were made on Sunday.”

The testimony tended to show that the defendant uniformly kept the back door of his saloon open on Sunday, and that the husband of the plaintiff, and others, assembled thei’e on that day, and that he purchased and drank intoxicating liquors, causing his intoxication. This was a fact properly considered as bearing upon the duty to award exemplary damages.

But we are satisfied that the damages ai’e excessive,, and therefore that the verdict is against the evidence. The period of time covered by the illegal acts of the-defendant below was about two years and six months. The verdict was $5,000. It appears from the evidence, and, indeed, the plaintiff testified, that she and her-family were well provided for during that period by her husband. Her loss consisted principally in an injury to her means of future support. At the death, of the husband she was left in comfortable circumstances. Each child — five in number — has or had a like-remedy for injury to its means of future support, resulting from the same acts of the defendant. We are not. unmindful of the fact that the case has been twice tried at no little expense; but, in view of the facts developed at-the trial, fairly dedueible from the evidence disclosed by the bill of exceptions, we think the verdict was too large by twenty-five hundred dollars. A verdict may and ought to be set aside, as against the evidence (2 S. & C. 1155, § 4), where the damages are excessive, unless *the excess is remitted. If a remittitur in the above sum is entered by the-plaintiff below the judgment will be affirmed, otherwise' reversed, and a new trial ordered.

Gilmore, J., dissented.