author: "White, J.

text:
    Buckingham v. Buckingham.
    1. M. engaged in the management of the business of H. Beyond tbe first year there was no agreement as to tbe time tbe service was to continue, nor as to tbe compensation to be paid ; but it was tbe expectation of tbe parties that they would come to an agreement as to such compensation. After many years of service and before tbe contemplated agreement was consummated, M. became a bankrupt: Held, that on the adjudication of bis bankruptcy the right to demand the value of the services already rendered passed to tbe assignee, who, by operation of law, succeeded to all tbe rights of tha bankrupt in respect to such demand.
    2. Before a bankrupt can maintain an action on a claim, which, under tbe adjudication in bankruptcy passed to tbe assignee, on the ground that tbe assignee elected not to take such claim, it devolves upon the bankrupt to show that tbe assignee was informed of the nature of tbe claim and that he elected not to take it.
    3. In an action brought by a bankrupt upon a cause of action which passed to his assignee, it is immaterial whether the right of the assignee to sue on the causo of action is barred or not.

      4. The objection, that the cause of action for which the plaintiff sues was assigned before the commencement of the action, does not relate to the capacity of the plaintiff to sue, but to the fact that the right of action sought to be enforced is not in the plaintiff. To warrant a recovery the petition must show a cause of action in the plaintiff.
    Error to the District Court of Hamilton County.
    The action in the common pleas was instituted by Mark Buckingham, to enforce the specific performance of a contract to convey real estate.
    It appears from the petition, “ That in September, eighteen hundred and sixty-seven (1861), the said plaintiff applied in the district court of the United States for the southern district of Ohio for the benefit of an act entitled “ An act to establish a uniform system of bankruptcy throughout the United States,” approved March 2, 1861, and under the proceedings had upon said application surrendered all his property and effects, pursuant to the requirements of said law, and having conformed to all the requirements thereof, was, on the tenth day of April, eighteen hundred and sixty-eight (1868), forever discharged from all debts and claims which by said act were provable against his estate, and which existed on the sixth day of September, eighteen hundred and sixty-seven (1861), as will more fully and at large appear by the records and proceedings of said district court, reference being had thereto.”
    The petition also states, that on April 15, 1869, the defendant, Horatio Buckingham (in consideration of certain services theretofore rendered by the plaintiff for and at the request of the defendant), promised and agreed that he would, when he should be so requested by the plaintiff, convey to him, in fee simple, certain real estate situated in Hamilton and Clermont counties, Ohio, and in said petition particularly described, being five separate tracts, containing about 241 acres of land, with a distillery, a mill, a dwelling-house, and warehouse on the same. And also, the defendant would convey to plaintiff, or pay him an amount of money equal to one-half the value of certain lands in the counties of Cook and Hamilton, in the State of Illinois, and certain other lands in Hamilton county, Ohio, in said petition described, subject to the payment of about $7,470 by said plaintiff toward the extinguishment of certain claims against part of said property.
    It is also alleged in the petition, that said plaintiff, as part of said agreement, was to pay and indemnify the defend ant against liability on two notes made by defendant to the order of the said plaintiff, for $6,825 each, and dated December, 1853, and at the date of filing said? petition held by the assignee in bankruptcy of the said Mark Buckingham.
    The petition avers that the plaintiff has requested the defendant to make said conveyances, but he refused so to do, and it prays that he be adjudged and compelled to convey, &c.

    To this petition an answer was filed, and a decree was taken in the common pleas, dismissing said action. The case was taken to the district court by appeal. On the trial of the case in the district court, the plaintiff having wholly failed to prove the agreement to convey set forth in his petition, filed (by leave of court) an amendment thereto, stating that on said April 16, 1869, ;£ the said defendant, in consideration that the said plaintiff had done and performed the services and benefits thereinbefore set forth and described, at the instance and request of the defendant, and in the manner as thereinbefore set forth, undertook and faithfully promised the plaintiff that he, the defendant, would, upon the request of the plaintiff, pay to the said plaintiff such an amount of money as the said services and benefits might be reasonably worth.” And that said services were of great value, and were reasonably worth an amount of money equivalent to one-half the profits realized from said services; and that the defendant then and there promised to pay to him one-half of the said profits, but has failed, though often requested so to do.
    The amended petition avers that the plaintiff’s half of the said profits amounts to $35,000.
    The district court found, from the evidence, that neither of the agreements alleged in the petition and the amendment thereto have been made on April 15, 1869, was in fact made.

      Tbe claim of tlie plaintiff, therefore, rests on the original understanding and agreement between the parties in 1853, when he entered into the employment of the defendant.
    The plaintiff’s statement of what that was is set forth in his testimony as follows:
    “ The agreement was that I was to take possession of this personal property, and do with it as if it was my own. I was to use his name. I was to use his name as if it was my own. I did go ahead with the use of his name, and conducted the business as if it was my own. We made a sort of nominal agreement, about $600 per year, for my services for the first year, and the use of the house, but it was to have nothing to do with the justice between us. The agreement was to do all justice by me. That was the agreement; I continued to do business; the distillery was burned in the spring of 1858 ; the store'was continued till about the spring of 1861; the flour-mill was run up to 1869 ; the grist-mill has a capacity of one hundred and fifty barrels per day; we kept it running pretty busily up till the distillery was burned; it was run afterward, but not doing so much.” (There were about sixty-four acres of the mill property which was farm land.)
    “ These operations were carried on in the name of IT. Buckingham. There were a regular set of books of account kept by Charles. I made some entiles; I had supervision of the books; they were open to IToratio. TI. Stroman was the first bookkeeper; after him A. M. Robinson ; then James (Test till he died ; after his death, in 1866, there was not much done after 1866. I carrried'on the business, except in the last three or four years; IToratio saw to renting the mill, &c.”
    On cross-examination, he says: “After the spring of 1865, I did not do much, as there was not much to be done. I have done certain things for IToratio after 1865 ; I did not do any regular business for Horatio since 1865 ; I did what was necessary.”
    IToratio Buckingham says that Mark asked him $600 per year .for his services, and he gave him it. He had, in addition, the use of the dwelling-house and about five acres of land, and his fire-wood, corn, &c. He says: “We never had any other bargain.” This was all tbe testimony there was before the court in reference to the agreement between the parties as to the terms of the employment.
    The defendant introduced testimony showing that on September 6, 1867, Mark Buckingham filed, his petition in bankruptcy in the district court of the United States for the southern district of Ohio; was duly adjudged bankrupt; and on October 18, 1867, E. P. Cranch, the register in bankruptcy, executed and delivered a deed of assignment, pursuant to the statute, to T. Jeff. Phelps, the assignee in bankruptcy of said Mark Buckingham, which deed was read in evidence.
    The schedules did not contain any reference to the claim sued on herein, nor was it mentioned or disclosed in the examination of the bankrupt.
    The district court, on the trial of the case, found, among’ others, the following facts from the evidence:
    “ That the defendant, in December, 1853, engaged the plaintiff to undertake the management of all of said business (to wit, the management of a store, a distillery,' a grist-mill, and saw-mill); that the plaintiff carried on for the defendant all said business, and also other business operations in Cincinnati and on the Scioto-river, and conducted for' him sundry purchases of land in Ohio and Illinois; that the plaintiff devoted the whole of his time to said employment, which was finally terminated in the spring of 1869 ; -that for the first year of said employment the plaintiff has been fully paid and satisfied; that during the rest of the said employment the plaintiff resided in the said dwelling and curtilage belonging to the defendant, and has drawn from the said business means for the support of himself and family, and the education of his children ; that the plaintiff all the while expected and the defendant all the while intended to make, at some subsequent time, an agreement for the complete compensation of the plaintiff; that in the spring of 1869, the plaintiff and defendant conferred and made memoranda, with a view toward making such agreement, bnt determined to postpone to a later day the making of an agreement; that the jfiaintiff has since called on the defendant to enter into an agreement for the complete compensation for the services rendered, but that the defendant has refused and still refuses to make any agreement, but claims the plaintiff has been fully compensated.
    “ And the court further find that the plaintiff is entitled to reasonable compensation, and find that a sum equal to one-half of the net profits of the business carried on by the plaintiff for the defendant, including investments in land, would be reasonable compensation. And the court orders a reference of the case to a master, to ascertain the amount of the profits,” &c.
    The court directed that the master, in ascertaining the amount of the profits, should include in said business the investments in land made by the plaintiff on behalf of the defendant ; and it also ordered that in stating said account credit should be given to the plaintiff for any money received by him as salary as postmaster or otherwise, in his own right, which he may have put into said business, and he should be chai'ged with a fair rent for the house and curtilage occupied by him, and with money paid to him or on his account by the defendant, as well as with what he drew himself from the business.
    Exceptions were taken to the findings and decree of the court, and to the overruling of a motion for new trial made by defendant, and a bill of exceptions embodying all the testimony was signed, sealed, and allowed, and made part of the record. • Ancl this proceeding in error is prosecuted to. reverse said judgment or decree of the district court, because of errors aj>parent on the record.
    The first error complained of is, that the court found and decreed that the plaintiff was entitled to recover for services rendered by him prior to the date of the commencement of his proceedings in bankruptcy, on September 6, 1867.
    The second error relates to the rule or measure of damages decreed and fixed by the court, to wit, that a sum equal to one-half the net profits of the business carried on by the plaintiff should be taken as the amount of damage to which the plaintiff is entitled.

      George Hoadley and Oqppoele da Qald/well, for plaintiff in error:
    • 1. As to wbat property passed to tbe assignee in bankruptcy, see Hilliard on Bankruptcy, 107, 108, 146; Comegys v. Vosse, 1 Pet. 193; Milnor v. Metz, 16 Id. 221. Tbe effect of tbe proceedings in bankruptcy was to divest tbe plaintiff of all bis property and rights, including tbe claim sued for, on September 6, 1867. Those rights passed to and vested in tbe assignee, in trust for tbe creditors. Tbe assignee took tbe legal title to all tbe assets, and tbe creditors became tbe equitable owners of tbe same. Tbe assignee alone could sue for tbe recovery of tbe assets, except perhaps where be willfully and fraudulently neglected bis duty, in which case tbe creditors might in equity prosecute a suit by making tbe assignee a party and setting forth bis neglect and refusal. But tbe bankrupt could not maintain such an action in bis own name. His legal capacity to sue for rights which accrued before tbe bankruptcy was gone. It was therefore sufficient, in this’ case, in order to defeat the plaintiff’s action, for tbe defendant to show that tbe plaintiff bad filed bis petition in bankruptcy, and that tbe register bad executed a deed to bis assignee. This was a bar to the action, at least to so much as sought a recovery for services rendered prior to September 6, 1867. On this point we refer to tbe decision of Lord Campbell in tbe case of Sprye v. Porter, 38 Eng. L. & Eq. 67. See same case reported 7 Ellis & Blackburn, Q. B. 57.
    2. Tbe true rule for determining tbe compensation in the present case, it appears to us, is for tbe court to ascertain wbat skill and experience tbe plaintiff bad when be entered the employment of tbe defendant, and what be did while in said service. These being shown, tbe next step would be to prove wbat such services were reasonably worth. Quantum meruit or gua/itum valebif is tbe question. “A quanimm meruit is not wbat tbe defendant gained, but wbat tbe plaintiff deserved.” Edington v. Pickle, 1 Sneed (Tenn.) 122.

      Matthews, Ramsey da Matthews, and Da/oid M. Pfyma/n, for defendant in error:

      Tbe defendant did not demur, nor did he, by bis answer, seek to take any advantage of tbe plaintiff’s bankruptcy ; and, under this- section of tbe Code, be must be deemed to have waived this objection. Does tbe mere fact that it appears on tbe face of tbe pleadings, or in tbe evidence at tbe trial, that tbe plaintiff bas been adjudged a bankrupt, have tbe force of a }3lea or answer 1 We think not.
    Tbe objection that the plaintiff bas not the legal capacity to sue unless it appeal's on tbe face of the complaint or petition,. so that it can be raised by demurrer, is new matter. Being in the nature of a dilatory defense, like that of a defect of parties, tbe facts wbicb constitute it must be stated with certainty; a mere general averment would raise no issue. Pomeroy on Remedies, 733, and cases cited; Burnside v. Mathews, 54 N. Y. 78.
    An answer in an action for tbe recovery of personal property, wbicb avers that the plaintiff bas been adjudicated a bankrupt, and prays that tbe suit abate, but does not aver appointment of an assignee, is bad on demurrer. It is Hot tbe adjudication in bankruptcy, but tbe appointment of an assignee, wbicb divests tbe bankrupt’s title; and pleas in abatement must be drawn with great precision and accuracy. Sutherland v. Davis, 42 Ind. 26.
    If tbe plaintiff’s legal capacity to sue was gone, certainly tbe right of tbe defendant to show such want of legal capacity was also gone, by bis failure to take advantage of tbe defect' by answer or demurrer.
    “A court cannot take judicial notice of proceedings in bankruptcy in another court, and it is its duty to proceed as between tbe parties before it until, by some proper pleadings in tbe case, it is informed of tbe changed relations of any of such parties to tbe subject-matter of tbe suit.” Eyster v. Gaff, 91 U. S. 524; Smith v. Gordon, 6 Law Reporter, 313 ; Copeland v. Stephens, 1 Barn. & Ald. 573 ; Webb v. Down, 1 Bos. & Pull. 44.
    If the assignee elects to claim property, be must elect in a reasonable time. Rugely v. Robinson, 19 Ala. 404, 416, 417.

      As to the title an assignee in bankruptcy takes, see Rhoades v. Blackiston, 106 Mass. 336.
   "White, J.

If the first ground of error is well taken, the second need not bo considered.

The first ground is, that the court erred in finding and decreeing that the plaintiff below, Mark Buckingham, was entitled to recover for services rendered by him prior to the commencement of his proceedings in bankruptcy, on September 6, 1867.

Whether this ground of error is well taken or not depends upon the effect of section 11 of the bankrupt act of March 2, 1867, upon the cause of action sued on. According to the provisions of this section, the deed' executed by the register vested in the assignee, among other things, “ all rights in equity ” and “dioses in action” of the bankrupt, and “ all debts due him or any person for his use, and all liens and securities therefor; all his rights of action for property or estate, real or personal, and for any cause of action which the bankrupt had against any person arising from contract,” &c. The section declares that all such rights shall, in virtue of the adjudication of bankruptcy, and the appointment of the assignee, be at once vested in such assignee.

That the plaintiff below had, at the time of his bankruptcy, a right of action for his services rendered up- to that time, we entertain no doubt, from the finding of the court and from his own testimony.

The finding is that he engaged in the management of the business of the plaintiff in error (the defendant below), in December, 1853; but that his employment did not finally terminate until the spring of 1869. The testimony, however, shows that his services substantially ended in 1865. The employment was for no specific time. Either party was at liberty to terminate it at any time, and to require a settlement for the services performed. The fact that it was the expectation of the parties that they would come to an agreement as to the compensation, did not require the plaintiff to continue in the service until such agreement should be consummated; nor did it affect his right to be compensated for services rendered.

On the adjudication in bankruptcy, the right to demand the value of the services already rendered passed to the assignee, who succeeded, by operation of law, to all the rights of the bankrupt in respect to such demand.

It is claimed on behalf of the defendant in error, that although all property and rights of property are, by operation of law, transferred to and vested in the assignee, yet that he is not bound, in all cases, to take possession of every part. That if any part of the property would be rather a burden than a benefit to the estate, the assignee may elect not to take such' property, and in the case of his making srrch election, that the right remains in the bankrupt.

We deem it unnecessary to refer to the various cases cited in support of this proposition. It is sufficient to say that the proposition is not applicable to the case before us. Before the bankrupt can support his title upon the ground that the assignee has elected not to take the property or the right in question, it devolves upon him to show that such election has been exercised by the assignee.

No such proof has been made in the present case. The schedules in the bankruptcy proceeding contained no reference to the claim sued on, nor was it mentioned or disclosed in the examination. - of the bankrupt; nor does it appear that the assignee was otherwise informed, or had notice of the nature or •extent of the claim.

It does appear that he was called as a witness by the defendant below on the trial; but the extent of his examination was merely to show when he was elected assignee, and to require the production of the deed executed to him by the register in bankruptcy.

It is also said, on behalf of the defendant in error, that an action brought by the assignee on the cause of action in question would be barred under section 2 of the bankrupt act. Whether this would be so -or not we cannot determine in this case. The assignee is not before us; and whether his right to maintain the action would be barred, under the principles decided in Baily v. Glover (21 Wall. 342), can only properly be determined in such action.

But whether an action by the assignee would be barred or. not is immaterial as respects the rights of the bankrupt. The rights of the bankrupt remain the same whether the right of the assignee is barred or not.

It is also claimed that the objection, that the plaintiff below cannot recover for services rendered prior to his bankruptcy, is not available to the plaintiff in error. The proposition is, that the objection relates to the legal capacity of the plaintiff to sue; and that as the objection was not taken by demurrer or by answer, the objection was waived.

But this contention of counsel is founded upon a misconception of the nature of the objection. The objection does not relate to the capacity of the plaintiff to sue, but to the fact, that it appears from the petition that the right of action which is sought to be enforced does not exist in the plaintiff, but in another, on whose behalf the plaintiff is not authorized to sue. To warrant a recovery on the petition, it must show a cause of action in the plcumtiff. If the petition fails to show such a cause of action, the objection is not waived by a failure to demur, or to make the objection by answer. A fact stated in the p'etition, which shows that the plaintiff has no right to recover, need not be again pleaded by the defendant, to make it effective.

The finding and judgment of the court, that the plaintiff below was entitled to recover for services rendered prior to the adjudication in bankruptcy, is set aside, the judgment reversed, and the cause remanded.


source: Caselaw Access Project

author: Boynton, J.

license: Public Domain

text:
    Patrick v. Littell et al.
    1. The separate estate of a married woman, is chargeable with the performance of her engagements or obligations made or incurred upon its credit or for its benefit; andan agreement by her to pay for services to be rendered in procuring a loan of money to remove a mortgage from such estate, is an agreement made upon its account, and for its benefit.
    2. In an action under section 28 of the Code of Civil Procedure, as amended March 80, 1874, against a married woman, upon her obligation in writing to.pay for services rendered, or money advanced, for the benefit of her separate estate, it is not error to render a personal judgment against her.
    S. Where a loan of money is to be secured by a conveyance of real estate in fee to the lender, with a lease back for a specified number of years, with a privilege of redemption to the lessees at the expiration of the term, the lessees to pay a ground rent equal to eight per cent, per annum on the money loaned, such security is in equity a mortgage and subject to taxation under the statute; and a promise to a third party to pay for services to be rendered in obtaining a loan to be thus secured, is not void as being contrary to public policy, although the object of the lender of the money in adopting such form of security was to evade taxation upon the investment.
    Error to tbe Superior Court of Ciucinnati.
    The original action was brought by the defendants in error, against John W. Patrick and Ruth A. Patrick, husband and wife, for services rendered and money paid for them, under the following written agreement:
    “ Cinti, October 9, 187J.
    “ To Jos. H. Littell & Co.
    “You are hereby authorized to negotiate for us a loan of $10,000 on our house and lot, 50x136, Imown as No. 53é Court st., between Baymiller and Freeman, sts., on a basis of a 10 years’ lease, we to give a good and sufficient deed of general warranty, free of dower and clear of incumbrances, and to receive a lease for 10 years, with privilege of redemption at the expiration of said term; we to pay ground rent, at the rate of 8 per cent., that is to say, $800 per annum, payable quarterly, and all taxes and assessments that are or may be levied against said property. We also agree to pay attorneys’ fees for examination of title, and your commission for negotiating loan. Commission to be one per cent.

      “ J. W. Patrick.
    “ Rutii Ann Patrick.”
    Tt appeared that the defendants had paid $50 attorneys’ fees for the examination of the title, and had secured the loan of $10,000 upon the property, in accordance with the above terms. The defendants below refused to receive the loan, and the action was brought to recover the agreed commission of $100, and the $50 paid for the examination of title.
    The petition alleged that the contract so executed by Ruth A. Patrick related to her separate estate, and was for its benefit, and that said Ruth held the legal title to the property described in said contract. These allegations were not denied.
    The answer, after setting up Mrs. Patrick’s coverture as a first defense, alleged that the transaction only contemplated a mortgage of the property of Mrs. Patrick, to secure a loan, and that the form it was to assume, of an absolute conveyance with lease back for ten years, with right of redemption, was to evade the revenue laws of the state, by enabling the lender of the money to treat the transaction on his part as a purchase of the property, and not as a mere loan of money, secured by lien upon the property conveyed. . This allegation was not denied by the reply. A personal judgment was rendered in the superior court, in special term, against both defendants below, and the judgment against Mrs. Patrick was declared to be a lien upon her separate estate. In the general term, upon petition in error by Mrs. Patrick, the judgment of the special term against her, was affirmed.
    She now prosecutes this petition in error to reverse such judgments.

      Matthews, Ramsey c& Matthews, for plaintiff in error.

      J. R. Murdoch, for defendants in error.
   Boynton, J.

The plaintiff in error contends that the judgment of the special term of the superior court against her is erroneous for two reasons.

First, that being a married woman when her liability is alleged to have been incurred, and not having charged her separate estate with the performance of her engagement or obligation to pay the defendants for the services rendered in her behalf, or for the money advanced for her, a personal judgment was wholly unauthorized ; and, secondly, that inasmuch as the transaction contemplated that the security for the loan should assume the form of an absolute conveyance, with a lease back for ten years, with a right of redemption at the end of the term, instead of an ordinary mortgage, the purpose being to evade the revenue laws of the state by so covering up the loau as to conceal the real character of the transaction, the engagement or obligation was void as against jmblic policy. As respects this objection, whatever might be the effect of the transaction, if the person from whom the money had been procured 'were seeking to enforce the provisions of the agreement, —with which point we are not now concerned, — the relation of the defendants in error to the transaction, or to the form of the security to be given for the money borrowed, was not such, in our judgment, as -to defeat their right to compensation for the services rendered, or the money advanced. They were constituted agents to procure a loan, upon terms jarescribed by the plaintiff and her husband. The written request to procure the same explicitly defined the form of the security the defendants were directed to adopt. It was in pursuance of these directions that the services were rendered and the money paid for the examination of the title to the property, which was to be pledged as security for the debt. The agreement by the defendants was fully executed, and the services rendered were performed in good faith. .To refuse them redress, under the circumstances; for the reason stated, would, it seems to us, be applying the doctrine which denies a remedy for the enforcement of contracts contrary to public policy, to a state of facts not justly falling within the operation of the rule. The services they performed were distinctive in their character and perfectly lawful; and, had the transaction been executed 'throughout in the mode contemplated by the parties, as respects the form of the security to betaken, it would, in fact and legal effect, have been but a loan secured by what in equity would have been regarded as a mortgage only, and the investment, without doubt, have been as much the subject of taxation under the statute relating to that subject, as if a mortgage pure and simple had been taken.

Where the transaction, within the understanding of the par ties, is a loan of money upon security, no form which the transaction may assume can so disguise it, as to change its legal character or effect.

It remains to consider the effect of the coverture of the plaintiff upon the obligation she assumed, and upon the right to give a personal judgment against her. The facts are briefly these. Being the owner of a separate estate, which was heavily encumbered by mortgage, she engaged the defendants in error, her husband joining, to secure for her a loan of $10,000 to enable her to remove the mortgage from her estate. She agreed to pay an attorney’s fee for making an examination of her title, and a commission of $100 to the defendants for securing the loan. The services stipulated for were fully performed, the defendants paying $50 from their own funds to the attorney making the abstract of title. • The plaintiff refused to accept the loan, or to pay for the services rendered in procuring it. We have no hesitancy in pronouncing the agreement made, to be one, not only having direct reference to Mrs. Patrick’s separate estate, but made for its benefit. The object was to remove an existing incumbrance upon the property, and it was to accomplish this object that the services of the defendants were engaged. The fact that the loan was to be secured by a new mortgage upon the same property, affects the question but very little. She was to get rid of a mortgage debt then due and pressing, by substituting another therefor, to become due ten years thereafter.

Whether the separate estate would in fact be benefited by exchanging one mortgage for another, is not the test of liability. A married woman, to the extent of her power of disposition over her separate estate, may charge it with such engagements as she sees fit to make. If subjected to no imposition, a fact always to be determined in view of the relation she sustains to the parties to the transaction, in connection with its nature and subject-matter, she may charge the property to the extent she might bind herself at law, were she sui juris, unless in so doing she exceeds some limitation upon her power of disposition. Pollock on Contracts, 13. And that there is now no limitation upon her power to bind her estate to the discharge of liabilities created on account thereof, where the estate is acquired under the statute, will be shown hereafter.

The question now is, whether an intention upon the part of Mrs. Patrick, to charge her separate estate with payment for the services rendered, and money paid by defendants, for the benefit of such estate, will be implied from the character of the transaction and the nature of the engagement entered into. The principles announced in previous adjudications of this court require an affirmative answer to this question.

In Graves v. Phillips, 20 Ohio St. 371, it appeared that Mrs. Graves, owning a separate estate, had purchased a piano, and given her note therefor, and that the same was purchased for her separate use, and as her separate property. The court held that an intention to charge her separate estate with the payment of the note might be inferred from its execution. In Avery v. Van Sickle, 35 Ohio St. 210, it was held that where a married woman acquires the title to property by purchase, which by force of the statute becomes her separate estate, and executes a promissory note therefor, an implication arises, in the absence of proof showing a different understanding, that she thereby intended to charge her separate estate with its payment. And the circumstance that upon sale of the property so purchased, in proceedings in foreclosure, the proceeds were exhausted in the payment of prior liens thereon, did not affect the creditor’s right to payment of the note out of the residue of her estate. So also, in Williams v. Urmston, 35 Ohio St. 296, we held that where a married woman, having a separate estate, executes a promissory note as surety for another, a presumption arises that she thereby intended to charge such estate with its payment. The principle of the first two cases is clearly applicable to the present. The liability, in each, was incurred not only on account, but for the direct benefit, of the estate, and was therefore held to be a just charge ujaon it. “The test of liability,” says Mr. Pollock, “ would seem on principle to be, whether the transaction out of which the demand arises had reference to, or was for the benefit of the separate estate.” Pollock on Contracts, 75.

Cases that deny the liability of the estate, where the wife becomes a surety, and does not expressly charge her estate 'with the payment of the debt, admit the liability where the engageinent either has reference to the estate, or is for its benefit. Yale v, Dederer, 22 N. Y. 450 ; Ballin v. Dillaye, 37 N. Y. 35 ; Manhattan B. & M. Co. v. Thompson, 58 N. Y. 81; Williard v. Eastham, 15 Gray, 328.

It was said, in a late English case, by Lord Justice James, that “ it would be very inconvenient that a married woman, with a large separate property, should not be able to employ a solicitor, or a surveyor, or a builder or tradesman, or hire laborers or servants, and very unjust, if she did, that they should have no remedy 'against such separate property.” London Chartered Bank, of Australia v. Lempriere, 4 P. C. (Law R.) 594.

Holding the separate estate of Mrs. Patrick liable to the defendants’ demand, we are also of the opinion that a personal judgment against her was proper. Her obligation is one upon which, were she sole, she would be liable at law. It is a contract or obligation upon which, under section 28 of the Code, as amended March 30, 1874, she might have been sued alone; and being of that character, the statute requires the like judgment to be rendered and enforced, in all respects, as if she were unmarried. 71 Ohio Laws, 47. It was one of the objects of this section, as thus amended, to so far modify the disabilities of coverture, as to authorize a personal judgment to be rendered against a married woman, where such judgment would have been proper, had she remained unmarried.

This provision, as amended, wrought a radical change in the. remedy as respects the character of the judgment to be rendered, as did the amendment of April 18, 1870, as to the extent of the property that might be reached to discharge the liability. Prior to the date at which a personal judgment was authorized, the decree, according to the English practice, and that of some of the states, was directed against the estate, declaring the separate estate vested in the wife at the date of the decree which it was within her power to dispose of, chargeable with the payment of the debt. Picard v. Hine, L. R., 5 Ch. App. 274; Davies v. Jenkins, L. R., 6 Ch. D. 730; Collett v. Dickenson, L. R., 11 Ch. D. 687; Johnson v. Gallager, 3 De Gex, F. & J. 520; Armstrong v. Ross, 20 N. J. Eq. 109 ; see Todd v. Lee, 15 Wis. 365.

As there was no personal liability, no personal judgment could be awarded, and the decree only reached property which it was within the wife’s power to bind. But under the statute as amended, the same judgment is required, with the same process for its enforcement as would bo awarded if the wife were sole; and, saving to her such exemptions as are provided for heads of families, her separate estate is made liable for any judgment rendered against her, to the same extent as would be the property or estate of her husband, for any judgment rendered against him. This subjects all her separate property and estate acquired or held under the act of 1861, and its amendments, with the exception named, to the payment of the debts chargeable upon it; and also all separate estate otherwise acquired, unless restrictions are laid on her power to charge the same by the instrument creating the estáte. Before the amendment of 1S70 it is dorrbtful whether the creditor could have reached more than the personal estate of the wife, with the rents and profits of her real estate arising upon a lease for the term for rvhich the wife could have leased the same without the consent of the husband. But now the creditors are substantially let in upon the whole estate, and where there are no liens to adjust, and the wife holds the legal title to the property constituting her separate estate — in other words, where there arc no equitable circumstances calling for the exercise of the equity powers of the court — a personal judgment, to be collected by execution, would seem not only an appropriate remedy, but to be clearly authorized by the statute. The Married Woman’s Property Act of England, of 1870, provided that “ a husband shall not, by reason of any marriage which shall take place after this act shall come into operation, be liable for the debts of his wife contracted before marriage, but the wife shall be liable to be sued for, and any property belonging to her for her separate use shall be liable to satisfy, such .debts, as if she had continued unmarried.” In giving construction to this provision in Exp. Holland, L. R., 9 Ch. App. 307, Lord Cairns said: “ I think the meaning of the section is, that although the husband is not liable for the debts in question, the separate property of the wife is to be liable, and that for the purpose of reaching it she is to be subject to the ordinary process of law and equity.” Section 28 of the code, as amended in 1871, gives the same process, resort being had to the one that is appropriate to the case.

The objection that it does not sufficiently appear that the plaintiff in error owns a separate estate, is not well founded. The petition alleges, and the fact is not denied, that the contract sued on related to her separate estate, and was made for its benefit. The contract related to no other property than that therein described, to which, it was alleged, she held the legal, title. It thus appears that the property to which the agreement related was held by her for her separate use. Whether she had other property does not appear. Having a separate estate, the whole of it, subject to the exemptions provided for heads of families, was liable for the judgment.

Judgment affirmed.


author: MoIlvaine, C. J.

text:
    Transfer Co. v. Kelly.
    In an action by a railroad passenger (who was, in fact, without fault himself), for a personal injury, against a defendant whoso negligence directly and proximatcly concurred with the negligence of the railroad company in producing the injury, the concurrent negligence of the company cannot be imputed to the plaintiff so as to charge him with contributing to his own injury.
    Error to the Superior Court of Cincinnati.
    Upon the trial of the case to a jury, issue having been joined by the defendants severally, and after the plaintiff had introduced all his testimony, the action was dismissed as to the railroad company on its motion, the court being of opinion that the testimony did not tend to prove a cause of action against it; thereupon further testimony was offered upon the issue between the plaintiff and the Transfer Company, and the following bill of exceptions was taken by the defendant, now plaintiff in error.

      “ Be it remembered, that at the trial of this cause at the May term, a.-d. .1876, of the superior court of the city of Cincinnati, it appeared from the testimony that the plaintiff, at the time of the happening of the injury complained of, was a passenger on a car owned and operated by the Cincinnati Consolidated Street Railroad Company, and there was evidence tending to show that the.injury to the-.plaintiff was caused solely by the negligence of the Covington Transfer Company; and the defendant, the Covington Transfer Company, having offered evidence tending to prove that the injury to the plaintiff was caused solely by the negligence of the Cincinnati Consolidated Street Railroad Company, and also evidence tending to prove that the injury was caused by the joint negligence of the Covington Transfer Company and of the Cincinnati Consolidated Street Railroad Company, asked the court to charge the jury, that if they found from the testimony that the injury to the plaintiff was caused by the joint negligence of the Covington Transfer Company and of the Cincinnati Consolidated Street Railroad Company, then the Cincinnati Consolidated Street Railroad Company alone would be liable to the plaintiff for the damages caused by such injury, and their verdict must be in favor of the Covington Transfer Company, which charge the court refused to give, and charged the jury that if they found from the testimony that the injury to the plaintiff was caused by the joint negligence of the Covington Transfer Company and of the Cincinnati Consolidated Street Railroad Company, -then both the Covington Transfer Company and the Cincinnati Consolidated Street Railroad Company would be liable to the plaintiff for the damages resulting from said injury, and that the jury could render a verdict against the said The Covington Transfer Company, although the Cincinnati Consolidated Street Railroad Company had been dismissed from the action. To which refusal to give said charge, and to the charge as given, the defendant, The Covington Transfer Company, by its counsel, then and there excepted, and presented this, its bill of exceptions, in that behalf, and prayed the court that the same might be signed, sealed, allowed and ordered to be made a part of the record in this cause; which was done accordingly at this the term of the trial, to wit: the May term, A. d. 1876.”
    Verdict and judgment having been rendered in favor of plaintiff below against ■ the Transfer Company, the latter prosecutes this proceeding to reverse the same on the ground of misdirection to the jury, as set forth in the bill of exceptions.
    The original action was brought by Kelly against the Covington Transfer Company and the Cincinnati Consolidated Street Railroad Company, to recover damages for a personal injury. The cause of action was thus stated :
    “ Plaintiff states that before and at the time of the committing of the wrongs and injuries hereinafter complained of, the defendant, The Covington Transfer Company, a corporation duly created under the laws of Kentucky, and having a managing agent and place of business in the city of Cincinnati, Hamilton county, Ohio, was the owner of the certain wagon and horses hereinafter referred to, and the said defendant, The Cincinnati Consolidated Street Railroad Company, a corporation duly created under the laws of Ohio, was the owner of the street railroad car hereinafter also referred to, and which was used by it to convey passengers in said city, for certain hire and reward.
    “Plaintiff says, that on the 8th day of August, 1871, he became and was a passenger in the said car of said street railroad company, tó be safely carried therein over its road, for certain hire and reward, and he was then received in said car, as said passenger, by the said street railroad company, and for which he paid to it the customary and required fare.
    “ That on said 8th day of August, 1874, while being thus seated and conveyed in said car, which'was then running along Third street, eastwardly, between Smith and Park streets, in said city of Cincinnati, the said defendant, The Covington Transfer Company, by its servants and agents, carelessly, negligently and unskillfully drove the said wagon belonging to it violently into the said street railroad car, and in the direction where the plaintiff sat therein as aforesaid, and the said defendant, The Cincinnati Consolidated Street Railroad Company, then and there, in disregard of its duty, did, by its servants and agents, carelessly, negligently and unskillfully conduct the running of said street railroad -ear, so that by the carelessness, negligence, unskillfulness and default of said defendants, The Covington Transfer Company and The Cincinnati Consolidated Street Railroad Company, through its servants and agents as aforesaid, and without any fault, neglect or carelessness whatever on his part, the right hand of the plaintiff was very badly cut and bruised and the bones thereof fractured and broken, causing him very great pain and suffering, rendering him totally unfit to attend to his necessary business for a long period, involving him in great expense in endeavoring to cure the said injuries, having been under constant treatment in a hospital, and yet, notwithstanding, his said hand has continued to be hitherto so'badly bruised and fractured that particles of broken bones are frequently taken therefrom, and the hand is now entirely useless, and so crushed, its bones so fractured and ligaments thereof so lacerated, as to be, and the same is, rendered permanently injured and crippled, and so will remain during his life, and whereby, on account of the premises, he has sustained damages in the sum of §2,000.”

      jDodds ds Wilson, for plaintiff in error :
    The remedy of a passenger who has been injured by the joint negligence of his carrier and another party, 'is against his carrier alone. Thorogood v. Bryan, 8 C. B. 115 ; Armstrong v. Railway Co., 10 Exch. (Law Rep. Series) 47 ; Lockhardt v. Lichtenthaler, 46 Pa. St. 151.

      Long, Kramer & Kramer, for defendant in error :
    As to joint liability for joint negligence, see Boyd v. Watt, 27 Ohio St. 259 ; Colgrove v. Railroad Co., 20 N. Y., 492 ; 1 Ohitty Pl. 86 ; 6 Taunton, 29 ; 1 Wash. 187; 6 Duer, 382 ; 7 Cowen, 485 ; 11 Weird. 539 ; 7 Mass. 169 ; 15 N. Y. 380 ; 19 Johns. 381; 2 Kern. 580 ; 19 N. Y. 341; 5 Exch. 240 ; Greenland v. Chaplin, 5 Exch. 243; Turnpike v. Stewart, 2 Mich. 714 ; Darey v. Chamberlain, 4 Exch. 229 ; Bennett v. Railroad Co., 36 N. J. 225; Webster v. Railroad Co., 38 N. Y. 260; Tuff v. Warman, 2 C. B. (N. S.) 740; 5 C. B. 573; Barrett v. Railroad Co., 45 N. Y. 628.
   MoIlvaine, C. J.

The exact question ,presented by this record, as we understand the bill of exceptions, arises upon the fact assumed in the request to charge and in the charge as given to the jury, that the wrongful acts of the defendants below, the railroad company and the transfer company, were not only concurrent in point. of time and place, but in such manner that the wrongful act of each was a direct and proximate course of the injury complained of by the plaintiff ; and this being so, it matters not whether the act of each, without the concurrence of the other, would have .produced the injury, or, that the negligence of neither would have caused it without such concurrence ; so that upon general principles and reason both or either ought to make compensation therefor. The general rule undoubtedly is, that where damage is caused by the joint or concurrent wrongful acts of two or more persons, they may be prosecuted therefor jointly or severally. To this general rule of liability, whether joint or several, there is an exception, howevei’, based upon reasons as sound as is the rule itself, namely : that where the injured party, by his own negligence or wrongful act, contributes to his own injury, the law will not afford him a remedy against all or any of the persons whose wrongful acts, in connection with his own, produced the injury. But the case before us does not come within the exception above stated, for the reason that it is here admitted by the pleadings, that the plaintiff below was w%faot without fault on his part. It is contended, however, by the plaintiff in error, that the plaintiff below was so identified with or related to the railroad company by the contract for carriage, that the fault of the carrier must be imputed to him as passenger.

The imputation thus contended for, however, is not based upon any alleged fault of the plaintiff below in entering into the contract for carriage with the railroad company; for there is not even a suggestion that the . contract was one which a reasonably prudent man would not have made; but simply 'upon the ground that the plaintiff below was a passenger upon the car of the company at the time when an act of carelessness, contributing to his injury, was committed by one of the company’s servants, namely: the driver of the car.

If the driver could, in any just sense, be regarded as the agent or servant of the passenger, or if the railroad company, whose servant the driver was, had been, under the contract, subject to the direction or control of the passenger, then, with some show of reason, it might be said that the passenger was responsible for the negligence of the driver.

But such was not the nature of the contract. The passenger was, it is true, entitled to a seat in the company’s car; but -was not entitled to direct or control the time or manner of its movement. That the company was bound to exercise the highest degree of care to the end that the passenger might be safely carried, is true ; but it was not subject to the direction or control of the passenger, either as to employment of servants or as to the manner in which the service should be performed. It seems to us, therefore, that the negligence of the •company or of its servants should not be imputed to the passengc,", .where such negligence contributes to his injury jointly with the negligence of a third party, any more than it should be so imputed, where the negligence of the company or its servants was the sole cause of the injury. Indeed, it seems as incredible to my mind that the right of a passenger to redress against a stranger for an injury, caused directly and proximately by the latter’s negligence, should be denied, on the ground that the negligence of his carrier contributed to his injury, he being without fault himself, as it would be to hold such passenger responsible for the negligence of his carrier, whereby an injury was inflicted upon a stranger. And of the last proposition, it is enough to say that it is simply absurd.

While we acknowledge the high authority of cases holding views contrary to those above expressed (Thorogood v. Bryan, 8 Com. Bench, 115; Armstrong v. Lancashire Railway Co., 10 Exch. Law R. Series, 47, and Lockhardt v. Lichtenthaler, 46 Pa. St. 151), we find, on the other hand, many cases of equally high standing holding, and, we think, with better reason, that the negligence of the carrying company cannot be imputed to a passenger who is rightfully on its train,- and who is guilty personally of no fault or negligence, in an action by such passenger against another party, whoso negligence has contributed directly to his injury. Chapman v. New Haven R. R. Co., 19 N. Y. 341; Colegrove v. N. Y. & N. H. R. R. Co., 20 N. Y. 492; Bennett v. N. J. R. R. Co., 36 N. J. 225; 1 Smith Lead. Cas. 450, 6 Am. Ed.; 43 Wis. 513 ; 14 Minn. 81; 11 Allen, 500; 50 N. H. 420.

We are also aware that by an almost unbroken line of decisions it is held that the negligence of a common carrier of goods, contributing to the injury of such goods while in its possession, is a good defense to an action by the owner of the goods against a third person whose negligence also contributed to the injury.

Whether these decisions conflict with the doctrine announced in this case depends entirely on the question whether or not a distinction, on principle, can be made between cases of carriers of goods and carriers of passengers. That there is a marked distinction between the relations of the parties to these different contracts is quite certain. The common carrier of goods has actual possession of and absolute control over them, and is ah insurer against loss or damage, except when occasioned by the act of Grod or a public enemy; while the carrier of passengers is only bound to the exercise of care; so that, in case of injury to a passenger over whose conduct the «arrier has no physical control, his own misconduct bars his remedy, whether the injury was caused by the concurring negligence of the carrier or the joint negligence of the carrier and others ; but in the case of goods, where the thing carried is incapable of contributory negligence, the law requires its safety to be insured. Now it may be that public policy, in the interest of trade and commerce, will not permit the liability of the carrier, who has failed in his duty in relation to goods, to be shifted to another, either with or without the consent of the owner; and, therefore, it may be that the law, in such case, requires the owner to seek redress from the carrier alone. But, however this may be, we are unanimous in the opinion that for a personal injhry to a passenger, who is himself without fault, occasioned by the joint and concurring negligence of the earner and another person, there is no sound principle of law which precludes the injured party from seeking redress from both or either of the wrong-doers.

Judgment affirmed.


author: By tiie Court.

text:
    Railroad Co. v. Belt.
    Error to the District Court of Franklin county. Motion to dismiss the proceedings in error.

      L. J. Critehfield, for plaintiff in error.

      B. Woodbury, for defendant in error.
   By tiie Court.

A petition in error, entitled as above, was filed in this court on June 21, 1879. The record not having been printed, in accordance with the Revised Statutes, section 6711, the proceeding in error was, on March 23, 1880, dismissed by the court, on motion of the defendant in error, notwithstanding plaintiff in error’s resistance to the motion and its motion for further time to print. On April 10, 1880, the plaintiff in error filed another petition in error on the same record, assigning the same errors which had been assigned in the former petition in error, whereupon the plaintiff in error moved to dismiss the latter proceeding, on the ground that it was unauthorized. Held, that the dismissal is a bar to the second petition in error. The rule at common law, where the first proceeding in error abates, or an end is put to it by the act of the plaintiff in error (Birch v. Triste, 8 East, 412; Powers v. Frick, 2 Grant, 306), does not apply in such case.

Motion sustained.


author: Johnson, J.

text:
    Liebman v. Ashbacker et al.
    1. April 3, A., B. and 0. commenced actions and sued out attachments, which were on the same day served by seizure of a stock of goods of the defendant. April 5, 6,14 and 20, other creditors also issued attachments, which were delivered to the same officer, at their respective dates, and levied on the goods in his custody under the prior writs; each of said levies being made subject to prior levies. May 3, A., B. and C. obtained judgments, and on the same day issued general executions, instead of orders of sale of the attached property, under which a sale was made of the same May 20, and the money brought into court.
    2. June 15 the other creditors also obtained judgments and orders of sale, and while a motion of A., B. and C. was pending to award to them the money, which was not sufficient to pay all, on the ground of their prior attachments, the other creditors issued orders of sale thereon. Held, that the issuing of a general execution, instead of an order for the sale of the attached property, and a sale of said property thereon, were not of themselves a waiver or abandonment of the priority acquired by the attachment, and that the money arising from such sale should be distributed according to such priority.
    Error to the District Court of Defiance county.
    The statement of facts will be found in the opinion.

      O. JT. Scribner, for plaintiff in error:
    The creditors in the three judgments first recovered, and whose suits were first instituted, having deliberately elected not to pursue their lien and process in attachment, but to. take out ordinary executions, and caused the same to be levied upon the goods of the judgment debtors, and the property to be sold thereunder, cannot have the benefit of their attachment liens. They are limited to the lien acquired by the levy under the execution by virtue of which the property was sold. Except where the statute otherwise provides, a judgment with ordinary execution enforces no existing lien upon the property levied upon.

      a. It does not énforce a vendor’s lien. McArthur v. Porter, 1 Ohio, 99. The lien, says the court in that case, is “ extinguished by the sale on execution.”

      1). Nor a mortgage lien. Taylor v. Fowler, 18 Ohio, 567; Harrison v. Eldridge, 2 Halst. 392.

      c. Nor a mechanic’s lien. Kirk v. Taliafero, 8 Smedes & Marsh. 754; Richardson v. Warwick, 7 How. (Miss.) 131.

      d. Nor a lien in attachment. Lamont v. Cheshire, 6 Lans. 234, 244, 245; McKay v. Harrower, 27 Barb. 463, 469; Brown v. Somerville, 8 Md. 444; Rhodes v. Amsick, 38 Md. 345; Craig v. Saven, Hardin (Ky.) 46 ; Stanton v. Harris, 9 Heisk. (Tenn.) 579 ; Hillmam, v. Warner, Id. 586.
    The doctrine of all the foregoing cases is, that by proceeding to judgment and making sale under a general execution, the creditor loses his special lien. This doctrine is in conformity with the rule established as to liens generally. Jacobs v. Latour, 5 Bingham, 130 ; Legg v. Willard, 17 Pick. 440; Sweet v. Brown, 5 Pick. 178.

      Kent, FFewton c& Pugsley, for defendants in error :
    I. The creditors first attaching, and who subsequently issued ordinary executions, did not thereby waive their attachment liens. Boos v. Ewing, 17 Ohio, 523; Phillips Mech. Lien, 390, 391, § 274; 2 Browne, 297; Cream v. McFee, 2 Miles, (Pa.) 214; Burton v. Launehill, 6 Blackf. 470; Moses v. Thomas, 2 Dutcher, 124; Van Waggoner v. Moses, 2 Id. 570; Hollister v. Dillon, 4 Ohio St. 197. Nor did they, by the levy of the execution, abandon or relinquish the lien of the prior attachment. Herman on Executions, 276, 277, § 186 ; Id. 333, § 215 ; Sterling v. Welcome, 20 Wend. 238 ; Bank v. Canal & Bkg. Co., 6 Hill (N. Y.) 362; Brown v. Williams, 31 Maine, 403; Lackey v. Seibert, 25 Mo. 85; Redus v. Wofford, 4 Sm. & Mar. (Miss.) 579 ; Cockey v. Milne, 16 Md. 200 ; Young v. Campbell, 5 Gilman, 80 ; Lessee of Paine v. Moorland, 15 Ohio, 435 ; Autrey v. Waters, 46 Ala. 476; Linch v. Crary, 52 N. Y. 181; In re Steele, 7 Bissell, 504. So long as the judgment debtors make no complaint, and were willing to waive the irregularity, if so it may be called, the subsequent attaching creditors cannot urge this objection. Drake on Attachments, § 324 ; McBride v. Floyd, 2 Bailey (S. C.) 209 ;. Walker v. Roberts, 4 Rich. (S. C. Law), 561, and this doctrine is fully recognized and enforced in our court. Ward v. Howard, 12 Ohio St. 158 ; O'Farrell v. Stockman, 19 Ohio St. 296.
   Johnson, J.

This is a contest among eleven .attaching creditors of. Louis and Frederick Ashbacher.

April 3, 1875, three of these creditors commenced separate actions in the court of common pleas, and issued attachments thereon, which were delivered to the sheriff at the same time ; and on the same day, were levied on a stock of goods, which were taken into the sheriff’s possession and so held until their sale by him as hereinafter stated.

On 5th, 6th, 14th and 20th of April, 1875, like actions were commenced by the other eight creditors; attachments were issued to the same officer, and levied on the same property, on the days they were issued, each subject to the former levies.

May 3, 1875, the three creditors obtained judgments, and on the same day issued executions in the usual form to the sheriff (instead of orders of sale), on which the following return was made:

“Received this execution May 3d, a. d. 1875. On the same day I levied on the stock of goods in my hands, heretofore held under eleven orders of attachment, three of which were of concurrent date, to wit: April 3d, a. d. 1875 (one of which is issued in this case), and styled as follows, to wit: Albert T. Babbitt and Edgar A. Weed; L. S. Baumgardner & Co.; and Joseph Roemer, William Stern and Henry Stern, against said Lonis Ashbaeher and Frederick Ashbaeher. The other attachments are as follows, to wit: Adam Stout, vs. Louis Ashbaeher and Frederick Ashbacher ; Hays Bros. & Co., vs. Louis Ashbacher t and Frederick Ashbacher; the last two were of even date, to wit: April 5, A. D. 1875. John A. Griffith & Co., vs. Louis Ashbacher and Frederick Ashbacher; Desbecker & Block, vs. Louis Ashbacher and Frederick Ashbacher (said last two were of even date, to wit: April 6th, A. D. 1875). Lippincott, Johnson & Co., vs. Louis Ashbacher and Frederick Ashbacher; John Alburger & Co., vs. Louis Ashbacher and Frederick Ashbacher (said last two were of even date, to wit: April 14th, A. D. 1875). Gaus, Liebman & Co., vs. Louis Ashbacher and Frederick Ashbacher ; Strauss, Loeb & Co., vs. Louis Ashbacher and Frederick Ashbacher (said last two were of even date, to wit: April 20th, A. D. 1875). Each of said attachments was levied on the day of its date, and on the 3d day of May, 1875, I caused said goods to be advertised for sale in the Defiance Democrat, a newspaper published at Defiance, Defiance county, Ohio, on the 20th day of May, 1875, at the hour of 10 o’clock, A. M. of said day, at the Russell House block in Defiance, Ohio; and on said 20th day of May, A. D. 1875, I proceeded to offer said goods for sale, and then and there came different persons and bought of said goods to the amount of seven hundred and nine and 73-100 dollars, a sufficient amount to satisfy this writ and the costs thereon.

“ John B. Hartman,

“ Sheriff'

The money thus made was brought into court, and, being insufficient to satisfy all the levies, a motion was filed for the distribution, on which the claims of the several creditors to priority were made, and the court ordered the money to be paid to the three creditors who first issued their attachments.

This judgment was affirmed in the district court.

June 15, the eight creditors obtained judgments in their actions, and on July 19, issued orders of sale thereon to sell the .attached property.

Thus it appears that the sale was made on the executions by the officer who held the property under the attachments, before judgments or orders of sale were made in the latter cases.

The claim made by these subsequent attaching creditors is, that by issuing general executions instead of orders of sale, these three creditors thereby waived their priority, and let in the other attachments.

The argument is, that the act of issuing executions on these three judgments, directed to the sheriff, who held the attached property under whicli the sale was made, was of itself an abandonment of the priority acquired by the seizure under the attachments, and that, in law, the attachments which were levied subject to these became paramount.

In its simplest form' the question is, does the record show a waiver or abandonment of the priority created by the attachments first issued and served.

Executions ai’e of three hinds: 1. Against the property: 2. Against the person; and, 3. For the delivery of the possession of real property with damages and costs. Code, | 419.

A writ of attachment is in the nature of an execution, being against the property of the debtor. Its.office is to hold the property to satisfy the judgment to be obtained. It binds the property from the time of service. The property seized is in the custody of the law until discharged by one of the modes prescribed. If judgment is rendered for the plaintiff.it shall be satisfied out of the property seized and if there is not sufficient for that purpose, execution may issue as in other cases, to collect the residue of the judgment.

The order to sell attached property, after judgment, is therefore an execution of the first kind named, and differs from a fi. fa. execution only in this, that it is a command to sell the property in the officer’s hands under the attachment, while an execution in the usual form, commands a levy aud sale of the same, or any other property, to satisfy the same judgment. The latter form of execution is broader, and embraces the terms and office of the former. The greater includes the less. Under the order of sale, the same advertisement, sale and return would have been made as was made under the executions.

The return of the sheriff is made as if he had made the sale, under an order of sale.

Looking to the sheriff’s action in the premises we discover no evidence of an abandonment of the former seizure by him. He held the property under the attachments after the judgments the same as before, until a sale, or until he was otherwise discharged from that duty. The levy which he made was at most a mere paper levy, as the property was already in his custody. Had there been sufficient to pay all the attachments, no one could doubt the right of the latter attachments to distribution, under their respective seizures, after they' should obtain their judgments.

Looking to the -acts of these three creditors, we see nothing' which evinces an intention to abandon their priority, unless the issuing of an execution in the usual form, against all the prop-' erty of the judgment debtor, instead of an execution against the property seized in attachment, and causing a sale thereon, constitute such an abandonment. We think it-does not.

They had established their priority, and were in court on motion for distribution after sale, insisting on that priority. The burden of showing a waiver or abandonment when the prior lien appears, rested on plaintiffs in error. The 'only evi-' dence relied on to show such waiver or abandonment is the fact that a general execution was issued, instead of a special one, to sell the attached property. This fact, standing alone, is quite as consistent with a continued assertion of his established lien, as with its abandonment, and, considered in connection with the other acts of the parties, such as sale of the property and the sheriff’s return as upon an order of sale, under their direction, as we must suppose, and the claim made to the money then in court by motion, it becomes conclusive that there was no purpose or intention of the kind. Their lien was established. As the property was in the sheriff’s hands, subject to it, no actual levy had to be made, and practically all. that was done on the execution was identical with what would' have been done on the order. To constitute such a waiver or abandonment, the facts or circumstances should show that such was the intention. The property being all the time in the custody of the law, there was no change of possession, nor any direction amounting to a relinquishment.

In Bouton v. Lord, 10 Ohio St. 453, a levy was made upon real estate, upon a fi.fa. execution. After a return of the writ, a second fi.fa., instead of a vend. exp. was issued, under which the real estate levied on was sold, and it was held that the issuing of the second fi. fa., and a sale thereunder, did not constitute a waiver of the lien acquired by the first levy.

The same question arose in Lessee of Paine v. Mooreland, 15 Ohio, 436. That was the case of a judgment and order of sale, under the attachment law of 1824, which, in this respect, is substantially the same as the present law, as to the judgment and order to sell attached property. The sale was made upon a fi.fa., and not on an order of the court, as prescribed by the attachment law, and the question was whether the purchaser, at such sale, obtained a good title.

It was contended that as the act of 1824 required an order of sale, and as the land was not sold on such order, the officer had no power to make the sale. The reasoning of the court, in answer to this objection, is of equal force in the case at bar. It is said a general execution would have authorized a sale of any and all the property of the judgment debtor other than that attached. The officer was .therefore clothed with the power of sale. The difficulty was not a defect of power, but too much power. In its exercise the officer conformed to the statute and sold only the land attached. The court had failed to restrict his power to this property, but in its execution the officer confined himself to a sale of the land attached, and this was held a rightful exercise of authority to sell the attached property. It is urged that this case is not in point, as the question was as to title conferred by the sale, while here it is as to priority of liens. It is true the questions for decision in the two cases differ as stated; but the foundation of that decision was that the general execution authorized the sale of the attached property as well as all other property of the defendant in attachment, and therefore a sale under it of the attached property was a proper exercise of the power conferred by the judgment and order of sale in attachment. It was in law a sale in- the attachment proceedings. In this respect the two cases are identical, and from this fact the legal consequence follows that, being a sale under the judgment in attachment, the proceeds of the sale follow the priority established by it.

In this case no inten fcion to abandon is expressed, nor is it implied from the act of issuing a general execution and causing a sale of the same property on which the priority was established. It was only another form of writ used to make good the priority. Such at least is the presumption when nothing appears to the contrary.

• The property remained in the custody of the sheriff, under the seizure by attachment, until disposed of under order of the court, unless released by the attaching creditors.

The attachments of the eight creditors are all expressly subject to those of tlie three creditors. The latter remained in force at the time of the sale, and the money realized was brought into court for distribution, the same as if sold under an order of. sale regularly issued. In Acton v. Knowles, 4 Ohio St. 28, it was held that where personal property had been levied upon, with return of no sale for want of bidders, and the. property returned to the execution debtor, where it remained for fourteen months, the levy and lien, as against subsequent levies, was not in law void, but it was a question of fact whether the prior levy became void as tending to hinder and delay other creditors.

There the property, after levy, passed out of the actual possession of the officer, and yet it remained in his legal possession for'the purposes of the levy, unless the facts and circumstances showed that the levy was fraudulent.

Here the actual possession remained in the officer. The plaintiffs in error acquired no rights by their attachments, except expressly subject to the prior attachments, and the sale was made at the instance of the prior attaching creditors in the same manner as if regular orders had issued. No substantial right of plaintiffs in error, which they had acquired in this property by their attachments, was impaired or affected by this sale, or by the court below in distributing the money according to the priorities established by the several attachments. The error, if any, consisted in selling under a general instead of a special execution. This is a technical rather than a substantial error, which a court of errors should disregard. Bear v. Knowles, ante, 43.

Considerable has been said in the argument, as to the effect of proceedings in bankruptcy, had they been instituted within four months, on the liens acquired by attachment, and on those by levy. It is claimed that the former would have been avoided, while the latter would have given a priority, and hence, it is argued, that these three creditors in order to avoid such a result voluntarily abandoned their liens by attachment, which would have been thus defeated, and sought to acquire liens by final process which would be saved by such proceedings.

Whether such would be the legal effect of proceedings in bankruptcy we need not inquire, as there is nothing in the record to show that such proceedings were contemplated or threatened, or even tending to show that the execution was issued with such object in view. Such proceedings were never instituted. The record shows that each party has diligently asserted his claims under his attachment, and the argument is therefore an inference not supported by the facts disclosed.

Judgment affirmed.


author: 'White, J.

text:
    Foresman et al v. Haag.
    1. Under the act relating to guardians, passed February 9, 1834 (3 Chase, 1317 ; Swan Rev. St. 444), the only power to authorize a guardian to sell the real estate of his ward, prior to the creation of the probate court, was vested in the court of common pleas of the county in which the guardian was appointed.
    3. The provision in section 3 of the amendatory Act of February 33, 1840, (2 Curwin, 1237 ; Swan Rev. St. 447), requiring guardians to be governed, “ in the execution oí any order of sale” of the real estate of their wards, “ by the same regulations that may be prescribed and in force when such order is made, for the sale” of lands by administrators, does not prescribe the court to which application may be made by the guardian to obtain such order of sale ; but relates to the manner in which the order is to be executed after it has been granted by the proper court.
    3. The concurrent jurisdiction conferred ujDon probate courts, in the sale of lands on petition by executors, administrators and guardians, by section 3 of the act of March 14, 1853 (3 Curwin, 2041 ; S. & C. 1213), vests in the probate courts of the several counties only such jurisdiction in regard to ordering such sales as was possessed by the courts of common pleas in such counties respectively. Hence, where, at the time of the passage of said act., the court of common pleas in a particular county was not authorized to order the sale of the lands of award, on the application of his guardian, the probate court of such county could not order such sale.
    4. The probate court of Pickaway county duly appointed, in 1853, guardians for certain minors residing in said county. On proceedings instituted by the guardians in the probate court of Cuyahoga county, certain real estate of the wards situate in the county last' named was, in 1854, sold by order of that court, the sale confirmed and deeds executed accordingly. Held, that the proceedings had in the probate court of Cuyahoga county were void for want of jurisdiction.
    Error to the Court of Common Pleas of Cuyahoga county. Reserved in the district court.
    The plaintiffs, on October 24, 1853, all being minors and residents of Pickaway county, Ohio, were the owners of the premises in the petition described, which are situated in Cuyahoga county, Ohio. The probate court of Pickaway county having appointed and qualified Isaac Shelby and Nancy M. Foresman guardians of said minors, said guardians, on said October 24, 1853, filed their joint petition in the probate Court of Cuyahoga county, against the said minors, praying for authority to sell said real estate.
    An order for the sale of the premises was granted by said court, and the premises were sold in pursuance thereof, by said guardians, the sale confirmed, and deed executed accordingly.
    The plaintiffs having arrived at majority, brought this action to recover the premises, and in their petition, they set out the proceedings had in the probate court of Cuyahoga county. To this petition the defendant demurred. The court of common pleas sustained the demurrer. A petition in error was filed in the district court to reverse the decision sustaining the demurrer, which was by the district court reserved for decision by this court.

      S. J. Andrews, 8. Bv/rhe, P. O. Smith and W. W. Andi-&ios, for plaintiff in error.

      R. P. Ranney, for defendants in error.
   'White, J.

The title of the plaintiffs to the premises in controversy is admitted upon the record, unless such title was divested by the sale made under the order of the probate court of Cuyahoga county.

The guardians of the plaintiffs, on whose application the sale was ordered, were appointed under the act for the appointment of guardians, passed February 6, 1824. 2 Chase, 1317; Swan Rev. St. 444.

The 1st section of the act contains the following provision : “ That the court of common pleas shall have power, whenever they consider it necessary, to appoint a guardian or guardians to all minors within their county, and on good cause shown, to authorize such guardian or guardians to sell all or any part of the property, whether real or personal, of his or their ward or wards; and the court shall, at the same time, direct the manner of securing to said ward or wards, the money arising from such sale.” ....

The 3d section of the act is as follows: That no sale of real property shall be made under the provisions of this act, unless the court shall be satisfied that such sale will be for the advantage of such, ward or wards, or necessary for his or their maintenance; and the guardian or guardians shall be governed therein by the same regulations as are required of administrators, in the sale of real property, in the case of insolvent estates.”

In construing this section, it was held, in Lessee of Stall v. Macalester, 9 Ohio, 19, that sales by guardians should, be conducted according to the act regulating sales by administrators, in force at the time the guardians’ act was passed. The act regulating the sale of real estate by administrators, in force at that time, was the act of January 25, 1816. 2 Chase, 929.

The act last named required no confirmation by the court of the sale of real estate by an administrator; and it was held, in the case above cited, that a sale by a guardian required no such confirmation, notwithstanding the act of February 11, 1828 (3 Chase, 1601), required administrators’ sales to be returned to and confirmed by the court.

After the decision in Lessee of Stall v. Macalester, on February 23, 18-46, the “ Act for the appointment of guardians ” was amended. 2 Curwin, 1237; Swan Rev. St. 447. Section 3 of the amendatory act is as follows : “ That no sale of real estate shall be made under the provisions of the act to which this is an amendment, unless the court shall be first satisfied that such sale will be for the benefit and advantage of such ward or wards, or necessary for his, her or their maintenance and education, or for either of such purposes; and the guardian or guardians shall be governed, in the execution of any order of sale in the premises, by the same regulations that may be prescribed and in force at the time such order is made, for the sale, by administrators, of the lands of intestate estates.”

That the authority to order the sale of real estate of a ward, on the application of his guardian, was, by the original act of 1824, vested exclusively in the court of common pleas by which the guardian was appointed, is not denied. But it is claimed that the effect of section 3 of the amendatory act of 1846, in connection with the administration act of 1840, was to vest like authority in the court of common pleas of the county in which the land was situate.

The claim is, that as the administration act of 1840 gave the administrator the option to apply for an order of sale either to the court of common pleas by which he was appointed, or to the court of the county in which the land was situate, that a like option was given to guardians by section 3 of the amendatory act of 1846, above referred to.

We cannot assent to this construction of the act of 1846. The provision in section 3 of that act requiring guardians to be governed u in the execution of any order of sale ” of the real estate of their wards, “ by the same regulations that may be prescribed and in force when such order is made, for the sale ” of lands by administrators, does not prescribe or designate the court to which application may be made by the guardian to obtain such order of sale; but relates to the manner in which the order is to be executed after it has been granted by the proper court.

The other ground upon which the validity of the order of sale is sought to be maintained, arises under the “ Act defining the jurisdiction, and regulating the practice of probate courts,” passed March 14, 1853. 3 Curwin, 2041; S. & C. 1213.

That act declares that there shall be established, in each county of the state, a probate court, and section 3 provides that such courts shall have concurrent jurisdiction in the sale of lands, on petition by executors, administrators and guardians.

The concurrent jurisdiction conferred upon probate courts by this section, in regard to ordering such sales, vests in the probate courts of the several counties only such jurisdiction as was, at the time, possessed by the courts of common pleas in such counties respectively. Hence, where, at the time of the passage of the act, the court of common pleas in a particular county was not authorized to order the sale of the lands of a ward, on tbe application of his guardian, the probate court of such county could not order such sale.

As, therefore, in our opinion, the court of common pleas of Cuyahoga county, at the time of the .creation of the probate court, was not authorized to order the sale of lands on the application of a guardian appointed in another county, no such authority was vested in the probate court of said county by the act conferring jurisdiction on that court.

Judgment reversed, demurrer to the petition overruled, and cause remanded for further proceeding.


text:
    Barnett v. Ward.
    1. Words charging a woman with sleeping with a man not her husband, impute to her a want of chastity, and therefore are actionable per se.

    2. The fact that a woman hears a different name from a person with whom she is charged to have been intimate, tends to prove that she is not the latter’s wife.
    3. The defendant, in an action of slander, was charged with saying of the plaintiff that she slept with a man, not her husband. The proof showed the statement to be. that such person was in bed with her. Held, the want of correspondence between the allegation and proof ' raises amere question of variance, and is not a failure of proof within the meaning of section 133 of the code of civil procedure.
    Error to the District Court of Warren County.
    The action below was brought by Angeline Ward against James Barnett, upon a petition in the following words and figures :
    That the plaintiff, at the time of the committing by the said defendant of the grievances hereinafter named, was, and still is, an unmarried woman, and did then sustain a good name and character among her neighbors and acquaintances for virtue and chastity, and was never suspected of the crime of fornication. Yet the said defendant, well knowing the premises, and maliciously intending to injure the good name and character of the said plaintiff, and to cause it to be believed that she had been unchaste and guilty of fornication, on, to wit, October 20, a. d. 1873, at Warren county, Ohio, in a certain discourse which he there had, of and concerning the plaintiff, and in the presence and hearing of divers good people, falsely and maliciously spoke and published, of and concerning the said plaintiff, the false, scandalous and malicious words following:
    1. That is to say, “ She ” (meaning the plaintiff) “ slept with John Fox.”
    2. “Angline Ward ” (meaning the plaintiff) “was sleeping with John Fox” (meaning an unmarried man) “when her watch was stolen.”

      3. “ Fox ” (meaning an unmarried man, as aforesaid) “ said he was sleeping with Angeline ” (meaning the plaintiff) “ when her watch was stolen.”
    4. “She” (meaning the plaintiff) “was sleeping with John Fox ” (a man having that name) “ when her watch was stolen.”
    5. “ Angeline Ward ” (meaning the plaintiff) “ was sleeping with John Fox ” (meaning a man who had before that time stolen the plaintiff’s watch) “ when her watch was stolen.”
    6. “She” (meaning.the plaintiff) “was sleeping with Fox” (meaning a man by the name of John Fox) “the night her ” (the plaintiff’s) “ watch was stolen.”

      7. “ John Fox ” (meaning a man who had stolen plaintiff’s watch) “ was sleeping with Angeline ” (meaning the plaintiff) “ when her watch was stolen.”
    And by means of the speaking of said defamatory words the said plaintiff hath been greatly injured in her good name and character, to the damage of the plaintiff $10,000.
    To this the defendant demurred.
    First — For the reason that the words set forth did not import the crime of fornication.
    Second — Petition did not state facts sufficient to constitute a cause of action.
    The demurrer was overruled, and the following answer was. filed by defendant.
    First — lie denies that he spoke the words in the petition set forth by plaintiff as spoken by him, and denies that he spoke either of the sets of words in the petition set forth, and charged in manner and form as therein set forth; and he denies any and all malice therein charged.
    Second — He denies that the plaintiff sustained damages or was injured, as in the petition set forth; and he denies each and every material allegation in said petition set forth.
    The case went to trial upon the following testimony:

      Lewis LIurst testified: That the defendant stated, in his hearing, the following words of and concerning the plaintiff: “ How in the devil did he come to get it without he had been sleeping with her 2”

      Ann Turney testified: Tliat tlie defendant stated in her hearing, “ That is how he came to find the watch; he was in bed with her.”

      Thomas Turney testified : That tlie defendant stated in his hearing, of and concerning the plaintiff, “ I said, ‘ liow did he ever think of going to look for the watch in the bed ?’ ITe said, ‘ he was in bed with her, and that is how he found the watch.’ A few days after defendant was at my house, and he said ‘ the way he (Fox) found the watch, he was in bed with her?”

      WilUam Buts testified: That defendant was going to Franklin and asked him to ride with him, and he (witness) got in defendant’s wagon, and defendant said: “ He had heard that tlie fellow was sleeping with her, and he wondered how he had got the watch.”
    And this being all the testimony offered by the plaintiff, she rested.
    And thereupon defendant, by his counsel, moved the court to arrest the testimony from the jury, and to direct a nonsuit, for the reason that the testimony of the plaintiff did not sustain the allegations in the petition, and because the words proved are not the words, nor the substance of the words, alleged in the petition. And the court sustained the motion, and the plaintiff excepted to the ruling of the court, and thereupon moved to amend her petition by alleging the words as proved by the witness Turney. And it appearing that the words so proven by Turney were spoken before the filing of the petition, and more than one year before said motion, the court overruled said motion to amend, and to which ruling the plaintiff excepted, and judgment was rendered for the defendant ; whereupon the plaintiff tendered her bill of exceptions, which was signed and sealed by the court, and contained the proceedings, evidence and rulings of the court, as herein above set forth.
    On petition in error the district court reversed the judgment of the court of common pleas, and remanded the cause for a new trial. It is here sought to reverse the judgment of the district court.

      T. F. Thompson, for plaintiff in error:
    The words spoken were not actionable per se. Selwin, by A. J. Fish, 7 Am. ed. 1263 ; Towns. § 129, note 1, and §§ 312, 313, pp. 507, 508 ; Id. 181, § 142, and note 2; "Wright, 123.
    The proof does not support the allegation. Towns. 372, 373, 565, 566, §§ 371, 364, 365, 369; 1 Swan Pr. 555, note a; 3 Stephen Nisi, 2575, 2576; 2 Greenl. Ev. 455, § 414, 9 ed.; 2 Selwin, 1267; 3 Allen, 72.

      A. Q. MeBwrney and Durbi/n Wa/rd, for defendant in error:
    The variance was not material, and there was no necessity of any inducements. Code, §§ 124, 133 ; Wright, 123, 316, 653 ; 15 Ohio, 319; Townshend on Slander, 234; Id. §§ 308, 505, and note; 11 Ind. 156; Desmond v. Brown, 29 Iowa, 53 ; Townshend on Slander, §§ 36A-369 ; 1 Am. L. C. 146.
   Boynton, J.

It has long been the settled law of this state, that words lettered in the presence and hearing of others, imputing to a woman a want of chastity, are, in themselves, actionable. It being their immediate and direct tendency to exclude her from society, and to bring her into disgrace among those who may credit thq charge imputed, thereby producing an injury from which damage necessarily results, a presumption of damage is made to supply the place of actual proof. The plaintiff in error, not doubting the rule thus stated, claims, nevertheless, that the judgment of the district court ought to be reversed upon each of three grounds. First. That the charge laid in the petition does not impute a want of chastity to the defendant in error. Secondly. That it was not made to appear that she' was an unmarried woman; and lastly, that there is a fatal variance between the words laid and the proof received to sustain them. Both courts below were of the opinion that the facts stated in the petition constituted a cause of action, and in that opinion we fully concur. The plain and obvious import of the language, charging the defendant in error with sleeping with John Fox, dtu'ing the night her watch was stolen, was to impute to her illicit intercourse with Fox. No one could hear the language uttered without understanding from it that the person uttering it intended to charge that such intercourse had, in fact, taken place. As was said in Shields v. Cunningham, 1 Blackf. 86, a phraseology more indecent might have been used, but no set of words, however plain and explicit, would have conveyed the idea with more certainty. See Townshend on Slander, Libel, § 172; Guard v. Risk, 11 Ind. 156.

The objection that no testimony was offered, showing, or tending to show, that the plaintiff was an unmarried woman is equally untenable. It is quite immaterial whether she was married or single. It is only important to know that she was not the wife of Fox, and this presumptively appeared from the circumstance that she did not bear his name. If, in the face of this, presumption, and notwithstanding it, it was claimed that she was the wife of Fox, the burden was on the defendant below to establish the fact by proof.

It is finally objected, that there is a fatal variance between the words laid in the petition, and those proved to have been spoken.

If the validity of this objection were to be determined by the rules governing the practice before the adoption of the code, a more difficult question would perhaps arise. The rule at common law required the words to be proved substantially as laid. Numerous cases held, that the same meaning, in different words, would not support the charge. However this may have been under the former practice, the question arising under the objection here made is to be determined by the rules established by the code. Thomas Turney testified, that the defendant below stated in his hearing, of and concerning the plaintiff, that “ the way he, Fox, found the watch, he was in bed with her.”

"Without looking into other parts of the testimony, we think the variance between this language and the words alleged to have been spoken was not such as to justify the court in arresting the cáse from the jury, and in directing a nonsuit. 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 on 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. Code,'§ 131.

The court is not authorized, in view of this provision, to determine from hearing the testimony of the witnesses given at the trial, whether the variance is so far material as to have misled the defendant to his prejudice, unless the allegation to which the proof is directed is so far unproved in its general scope and meaning, as to amount to a failure of proof. Code, § 133. Where there is not such failure of proof, in order to invoke the action of the court, it must be shown, not only that the party has been misled to his prejudice, by the variance, but the respect in which he has been misled must also be made to appear to the satisfaction of tlic court.

The court then determines whether it will grant leave to amend or not. If lfeave is granted the trial proceeds, unless a continuance becomes necessary by reason of the amendment. In the present case, it not only was not shown that the defendant below was misled to his prejudice by the supposed variance, but, that he was so misled was not even suggested. Indeed, it is not easily seen how ho could have been misled by a variance so slight. The words proved, as well as those in which the charge was laid, imputed to the plaintiff below a want of chastity. The words proved were slightly variant from those alleged, but they were clearly of the same import and meaning. That the defendant below could have been misled by a difference in phraseology apparently so immaterial, is hardly to be believed.

At all events, in the' absence of any claim, or showing, that the defendant below was misled to his prejudice by the variance, the court was not authorized, to dismiss the action.

It follows, therefore, that there was no error in the judgment of reversal.

Judgment affirmed.