author: Doyle, J.

text:
    Henkle v. Salem Manufacturing Co.
    T. being indebted to a bank, pledged to it as collateral security for' such debt certain shares of stock in The Salem Manufacturing Company, and executed to the president of the bank a power of attorney to trans-; for the stock, on the books of the company, to the pledgee, or any other person to whom the same may be sold. The stock was never transferred on the books of the company to the bank; it never voted upon it or exercised acts of ownership thereof.

      Held: The bank was not a stockholder within the meaning of article 13, section 3, of the constitution, or sections 3258-60, Revised Statutes and was not liable to creditors of the corporation in an action to enforce the individual liability of stockholders.
    Error to the District Court of Columbiana county.
    The Salem Manufacturing Company being insolvent, the plaintiff in error, a creditor thereof, filed a petition against the corporation, and its stockholders to enforce the individual liability of such stockholders. The petition alleged that the Eirst National Bank of Salem was a stockholder at the time the debt due plaintiff and the other indebtedness of the company were contracted. It is not alleged, nor is it claimed, that the bank was a stockholder, at the time the action was commenced. The answer of the bank denies that it was ever a stockholder in the corporation. The action was tried upon the issue thus presented, in the district court, and a judgment rendered for the defendant. The court stated its conclusions of fact and law separately. A bill of exceptions was taken, embodying all the evidence offered in the case, and made a part of the record.
    This proceeding is prosecuted by the plaintiff in error to obtain a reversal of that judgment.
    The findings and judgment of the district court are as follows:

      “ This cause coming on for hearing upon the appeal of said defendant, the Eirst National Bank of Salem, Ohio, and issues joined between said William D. Henkle, plaintiff, and said Eirst National Bank of Salem, Ohio, defendant, the same was submitted to the court upon the pleadings and evidence without the intervention of a jury, and the court being fully advised in the premises, as its conclusions of fact, finds that the First National Bank of Salem, defendant, was never the owner of stock or a stockholder in the said Salem Manufacturing Company. That on November 8, a. d., 1870, certificates for 115 shares of the stock of said Salem Manufacturing Company of the par value of eleven thousand five hundred dollars were delivered by the firm of Taber & Co. to Robert Pow. Said Taber & Co. before said delivery, executing warrants of attorney which were attached to said certificates conferring power on the said Robert Pow to assign and transfer said stock to said defendant bank or to any person or persons or corporation to whom said stock might thereafter be sold.

      “ The court finds that said certificates of stock were so delivered to said Robert Pow in trust for the use and benefit of said defendant, the First National Bank of Salem, and as collateral security for and to an indebtedness of Taber & Co. owing to said bank.

      “ That said Robert Pow, by • the direction and in the interest of said Bank did on the 30th day of December, a. d. 1871, transfer and assign to Joseph R. Roller sixty-five shares of said stock of the par value of six thousand five hundred dollars, and that on the 18th day of March, a. d. 1872, said Robert Pow by the direction and in the interest of said First National Bank transferred and assigned to Henry B. Baldwin fifty shares of said stock of the par value of five thousand dollars. That said sales were made for the benefit of said First National Bank and that it received the proceeds of the stock when so sold and transferred to said Roller and said Baldwin upon the respective dates above named. That said Joseph R. Roller and Henry B. Baldwin were defendants in this action on account of said stock so transferred to them, were served with process, and a decree taken against each of them for the full amount of their statutory liability on said stock in the court of common pleas in this action, which decree is still in full force; that said Joseph R. Roller was at ■the date of said transfer and- decree and still is solvent and responsible, and that Henry B. Baldwin was at the date of said transfer and has ever since been insolvent. ,
    “ That said defendant the Salem Manufacturing Company is an insolvent corporation of the state,of Ohio, and that full contribution is required and necessary to be made from each and every of the stockholders therein, of an amount equal to the par value of the stock owned or held by each, with interest thereon, for the payment of the debts of said company. And as its conclusions of. law upon the above found facts the court finds, that said defendant the First National Bank was not and is not a stockholder nor is it liable as a stockholder or otherwise to contribute to the payment of the debts of said Salem Manufacturing Company. It is therefore considered by the court that the said defendant, the First National Bank of Salem, go hence without day and recover from the plaintiff its costs herein expended, to all of which ruling, judgment and order of the court plaintiff excepts.
    “ And now comes the said William D. Henkle, plaintiff, and presents to the court here his bill of exceptions to the overruling of his motion for a new trial, and the same is signed sealed and allowed and ordered .to be placed on file and made a part of the record in this case, all of .which is so done as prayed for at the term aforesaid.
    “ And by consent it is further ordered that no record be made of any of the pleadings in this cause filed except of plaintiff’s petition, and the answer of said defendant, .the First National Bank thereto.”
    The stock never appeared upon the books of the company in the name of the bank.
    The testimony, as to the actual contract under which the bank took the stock, consists wholly of that given by two witnesses, M. Frank Taber, for the plaintiff, and Henry C. Jones (who acted for the bank in the transaction), for the defendant.
    The material part of Taber’s testimony is as follows :
    I was a member of the firm of Taber & Go. That is my signature in the warrant of attorney in that bopk (being the warrants of attorney, copies of which are hereto attached). We sold stock to the First National Bank of Salem. That is my recollection of it now. We did surrender it to them for a, consideration. By we, I mean Taber & Co. I cannot state positively the amount of the consideration without looking over old papers. I signed this paper. The First National Bank received that stock in part payment of a debt that wé owed them. The amount of the indebtedness of Taber & Com-. pany was about $36,000 owing to the bank. That debt was-discharged by the payment to the bank of a large variety of, property, consisting of machines, accounts, farmers’ notes and ' stock of the Salem Manufacturing Company.' This warrant of attorney was made out and given to them a short time before we made this final settlement, probably three weeks beíoré. The First National Bank held our notes to the full amount of our indebtedness. I do not know what kind of instrument was drawn to transfer these properties to the bank, but we turned them over to the bank or to their attorney, Henry C. Jones, and that transaction was carried on in the private .office of the bank in the bank building.
    . Upon the same subject, Jones testifies in substance as fob. lows:
    I was attorney for the First National Bank in 1869, 1870 and 1871 (and am still), at the time Taber & Co. had negotiations with the bank. I remember the arrangement that was, made between Alexander Pow and Oscar and Frank Taber. I managed the details of the affair. In November, 1870, Taber & Co. owed the bank from $34,000 to $35,000. The indebtedness to the bank was evidenced by notes. Some of the notes were' signed by Oscar Taber, Frank Taber and Moses Taber, and some by Taber & Co. Don’t remember all the conversation about the arrangement. It took some weeks to get the thing consummated. Tabers borrowed money largely, but put in farmers’ notes as collateral security. I don’t know how many of those notes were held by the bank at that time. Oscar Taber had agreed to pay $4,000, but instead of paying money down they gave farmers’ notes. A number of these notes were not transferred. When the arrangement was made, Oscar Taber said he could not give a $4,000 or $5,000 note as collateral security; he then agreed to give me some other security but found that he could not do that. I got assignment from Oscar Taber for accounts in hands of ¥m. Penrose, some' $9,000. Taber & Co. could not get.paper to take up this indebtedness fast enough,'so they proposed to give stock in the Salem Manufacturing Company. I objected to this. I wanted land but could not get that. They said we should take the stock as collateral, and apply the proceéds of any sales to the payment of the indebtedness. If after paying the indebtedness, there was any surplus-, it should be paid to Taber & Co. Such was the agreement under which powers of attorney were executed. Mr. Taber’s statement is incorrect. Stock was not applied to payment of debt of Tabers to the bank. The; warrant of attorney was made out at time of agreement. There was no written agreement.
    There is considerable testimony from these witnesses, and the cashier of the bank, as to the conduct of the parties in reference to the stock and how it was treated by the bank, and as to the sales made to Roller & Baldwin. It does not materially change the condition the case was in upon the testimony above given.

      J. T. Brooks, for plaintiff in error.

      J. A. Avnbler, for defendant in error:
    As to, the rule in determining who are stockholders, see Thompson’s Liability of Stockholders, §178; Adderly v. Storm, 6 Hill, 621. To the same effect see Thompson’s Stockholders’ Liability, chap. 10; Newry, &c. R. R. Co. v. Moss, 14 Beav. 64; In re Phœnix Life Ins. Co., Hoares case, 2 Johns. & H. 229 ; Worrall v. Judson, 5 Barb. 210; Divin v. Duncan, 11 Barb. 520 ; Mills v. Stewart, 62 Barb. 444; Matter of Empire City Bank, 18 N. Y. 200, 223, 225, 226 ; Mills v. Stewart, 41 N. Y. 384; Wheelock v. Host, 77 Ills. 296; Hole v. Walker, 31 Iowa, 311, 351; Magruder v. Colston, 44 Md. 349; Childs v. Coffin, 17 Mass. 64; Marcy v. Clark, 17 Mass. 330; Holyoke Bank v. Burnham, 11 Cush. 183 ; Crease v. Babcock, 10 Metc. 525; Green v. Breed, 10 Metc. 569 ; Stanley v. Stanley, 26 Maine, 191; Fowler v. Ludwig, 34 Maine, 455 ; Skowegan Bank v. Cutler, 49 Maine, 315 ; State v. Ferris, 42 Conn. 560 ; Upton v. Trebilcock, 1 Otto, 45 ; Sanger v. Upton, 1 Otto, 56 ; Webster v. Upton, 1 Otto, 65 ; Pulman v. Upton, 6 Otto, 328; National Bank v. Case, 9 Otto, 628.
   Doyle, J.

We are asked to reverse the .findings and judgment-of the district court.. -First. Because the finding of facts is against the preponderance of the testimony; and, Second. Because the judgment upon those facts is against the law.

1. The rule announced in Landis v. Kelly, 27 Ohio St. 567 and so often re-affirmed by this court, is peculiarly applicable to this case. Upon the issue presented the burden of proof was upon the plaintiff to establish that the bank was a stockholder, at such time as rendered it liable to creditors of the corporation. The court found from the testimony that the bank held the stock as collateral security, for a debt fine from the owner, but was not, itself, such owner. That finding is in accord with the testimony offered by the bank. That there was a conflict of testimony furnishes no ground for reversing-that finding by this court. It must appear from the record that the finding or verdict is clearly against the preponderance of testimony. We .are unable to say that, from the record in this case. See McGatrick v. Wason, 4 Ohio St. 567; Kane v. Stone Co., 39 Ohio St. 1; Scott v. Perlee, 39 Ohio St. 63.

2. The general rule, independent of statutory provision, is that the liability to pay calls and • to respond, in the event of insolvency, to creditors, attaches to the holder of the legal title only. The courts will not (save in exceptional cases) look beyond1 the registered shareholder; and it matters not whether such registered shareholder be a mere trustee for another, of a pledgee, holding the stock as collateral security. He is liable as a stockholder and must look to his cestui que trust, or pledgor, for such indemnity or reimbursement as he may be. entitled to. Thompson’s Liability of Stockholders, § 178 ; Adderly v. Storm, 6 Hill, 624; Empire City Bank, 18 N. Y. 223; Mills v. Stewart, 41 N. Y. 384; Wheelook v. Kost, 77 Ill. 296 ; Hale v. Walker, 31 Iowa, 344; 49 Maine, 315 ; 1 Otto, 56; 42 Conn. 560.

One exception to this general rule, is where stock has been fraudulently transferred to escape responsibility and at the same time retain the advantages of a stockholder. There may be others, but the general rule is as stated. The rule as now declared in this state by section 3259 Revised Statutes is :

The term ‘ stockholders ’ as used in the- preceding section shall apply not only to such persons as appear by the books of the corporation to be such, but. to any equitable owner of stock, although the stock appears on the books in the name of another.”

But neither' under the general rule stated nor the rule thus fixed by statute, is one who holds the shares of stock merely as collateral security for a debt, without a transfer thereof to him on the books of the company, the legal or equitable owner of such stock. He would not be entitled to vote upon it as against his pledgor, and if ho received any dividends the same would be credited upon the debt, as security for which he held it. Under this statute, in going beyond the registered owner it is for the purpose of finding the real owner. Neither the language of the constitution (art. 13, § 3) nor the statute R. S. §§ 3258-3260 requires us to hold that this species of property may not be used as a pledge or security for a debt, without subjecting the pledgee or creditor to liability for debts of the corporation which he has nothing to do with contracting, and in which corporation he is not entitled to the privileges of a member. Such creditor or pledgeelias the option, in a case like the one at bar, to perfect his security by investing himself with the legal title, with its attending liability to creditors in the event of the insolvency of the corporation, or to hold the shares as pledgee merely, doing no acts which as to creditors will estop him from denying his -ownership, assuming thereby whatever risk there may be, from rights of third parties intervening, to have - his security impaired..

Judgment affirmed.


source: Caselaw Access Project

author: Okey, J.

license: Public Domain

text:
    Morris v. Williams.
    The issue of a slave marriage, though their parents died before the emancipation proclamation, are, under the statutes of this state, lawful heirs of their father as to lands situated in this state.
    Error to the District Court of Meigs county.
    In 1817, in Mason county, Virginia, Thomas Williams and Katie, slaves, were, at their request, joined together as husband and wife, in the usual form of a marriage in that state, by their master, Eev. John.- Gv Nelson, a minister of the Baptist church, in the presence of a number of persons. They lived together as husband and wife several years, and during the cohabitation, Edmund Williams, only issue of the marriage was born. Thomas Williams was not the father of any. other child. Some years subsequent to the birth of Edmund, Katie was sold, taken to South Carolina, and died there in slavery in 1857. Thomas, becoming free in 1849, removed to Ohio, and during the same year, purchased a house and lot in Middleport, Meigs county, in which house he resided until his death. In 1851, Thomas was married, in Ohio, to Lavina Ash, who at the time had several children, parties to this suit. In 1856, Thomas died, leaving $50 of the purchase price of the property unpaid, which sum was paid by Lavina Williams,, the widow, and the vendor made to her a deed for.the premises. In 1860 Lavina Williams died, leaving her children in. possession of the property.
    Edmund Williams, becoming free in 1863, by force of the. emancipation proclamation, came to Ohio, and brought suit in. the court of common pleas of Meigs county, to compel the children and heirs of Lavina to convey to him the premises, account for the rents, and deliver possession.
    The cause having been appealed to the district court, was. heard therein in 1876, on petition, answer, reply, and testi-. mony, showing the material facts to be as above stated ; and upon such hearing, the court adjudged that Edmund Williams should pay to the children and heirs of Lavina, the. purchase money paid by her, amounting, in principal and interest, to $107.50 ; that on such payment being made, the children and heirs of Lavina should convey the premises to Edmund Williams, and in default of compliance with the order, the decree, should operate as a conveyance ; and that on ten days’ notice, after such payment, such children and heirs should deliver possession to Edmund, and failing to do so, the sheriff should deliver such possession, on an order to be issued for the purpose.
    .To reverse the judgment so rendered, the children and heirs of Lavina. filed this petition in error.

      E. A. Guthrie and Martin Hays, for plaintiff in error : . ■
    Claiming that the marriage of.Thomas Williams and.Katie,. being void by the laws of Yirginia, was also void here, cited, in argument the following: State v. Samuel, 2 Dev. &. B. L. 177: Anderson v. Poindexter, 6 Ohio St. 622; Martin v. Reed, 37 Ala. 198; Bland v. Dowling, 9 G. & J. 19; 1 131. Com. 433; Chitty on Con. (Sth Am. ed.) 466; Patterson v. Gaines, 2 Howard U. S. 550; Wright (O.) 180, 186; Knowlton v. Erie P. Co., 19 Ohio St. 260; Story’s Confl. L. §§ 80, 89, 93, 121, 124; Schrimehier v. Schrimehier, 2 Hag. Con. 417; 2 Kent’s Com. 60; Hall v. United States, 92 U. S. 27; Price v. Slaughter, 1 Cin. Sup. Ct. 429; Stikes v. Swanson, 44 Ala. 633; Hall v. Mullen, 5 H. & J. 190; Sarah v. Gardner, 24 Ala. 719; Smith v. State, 9 Ala. 990; Com. v. Glemenits, 6 Bin. 206; Timms v. Laey, 30 Tex. 115; Johnson v. Johnson, 45 Mo. 495; State v. Taylor, Phillips, 508; Estil v. Rogers, 1 Bush, 62; Howard v. Howard, 6 Jones L. 235; Jackson v. Lewey, 5 Cowen, 397; Stephens on West Ind, Slavery, 58; Emerson v. Howland, 1 Mason, 51; 1 Par. on Con. 414, § 8; Pierre v. Fontenette, 25 La. Ann. 617; 40 Mo. 595; Girod v. Lewis, 6 Mart. La. 559; Shafher v. State, 20 Ohio, 1; Waymire v. Jetmore, 22 Ohio St. 273; Gregg v. Thompson, 2 Const. Ct. Rep. 331; Jenkins v. Brown, 6 Humph. 299; Emerson v. Howland, 1 Mass. 45; Bynum v. Boetrick, 4 Des. 266; Cooper’s Jus. (ed. of 1852), 411, 419;
      Roche v. Washington, 19 Ind. 53; Const. of Ohio, art. 1, § 19; Drake v. Rogers, 13 Ohio St. 21.

      Grosvenor c& Vorhes and W. II. Laslcy, for defendant in error •.'■■■

    Counsel claiming that Edmund Williams is the owner of the property in question, cited in argument the following: Carmicael v. State, 12 Ohio St. 553; 2 Kent’s Com. 51, 579; 1 Bishop Mar. & D. §§ 6 13, 163, 351, 410, 415, 451, 457; 1 Green. Ev. § 489 ; Ripple v. Ripple, 1 Rawle, 285; Heberd v. Myers, 5 Ind. 94; Allen v. Watson, 2 Hill S. C. 319; Ferguson on M. & D. § 397; Vattel, § 7; Price v. Slaughter, 1 Sup. Ct. 429; Story Conf. L. §§ 50, 98, 427, 484; Greenwood v. Curtis, 6 Mass. 374; Anderson v. Poindexter, 6 Ohio St. 656; Ordinance of 1787 ; Const, of 1802, Bill of Rights, § 6 ; Stikes v. Swanson, 44 Ala. 633; Malinda v. Gardner, 24 Ala. 719; Minor v. Jones, 2 Redfield’s Suv. 289; 3 Wash. R. P. 16; Wills v. Cowper, 2 Ohio, 129; Sell v. Miller, 11 Ohio St. 331; Clark v. Graham, 6 Wheat. 597; Kerr v. Mason, 9 Wheat. 566; McCormack v. Sullivan, 10 Wheat. 192; Cutter v. Davenport, 1 Pick. 81; Chapman v. Robinson, 6 Paige, 627; Curtis v. Hutton, 14 Ves. 537; Elliot v. Minton, 6 Mad. 16; Birtwistle v. Vardill, 5 B. & Cres. 438; Hoover v. Brem, 43. Miss. 603; Nelson v. Smithpeter, 2 Cold. 13 ; Banks v. Banks, H. 546; 1 S. & C. 504, § 16; Code of Va. (2d ed.) 679, § 7; Johnson v. Johnson, 30 Mo. 89; Cheseldine v. Brewer, 1 Har. & M. 152; Wright v. Love, 12 Ohio St. 619; Rev. Stats. § 5244; Hutchins v. Kimball, 31 Mich. 126; Meister v. Moore, 96 U. S. 76 ; Pierre v. Fontenette, 25 La. Am. 617; Brown v. McGhee, 12 Bush. 429; Bonham v. Badgley, 2 Gil. 628; Elliott v. Gurr, 2 Phil. Ec. 16; Godolphin’s Eccl. L. 486, § 22 ; Burns’ Eccl. L. 120 ; Cobb on Slavery, §§ 275, 276; Milledge v. Summer, 4 Des. 640; Randolph, 241; Jackson v. Leroy, 6 Cowen, 402; Bynum v. Boetrick, 4 Des. 267; Girod v. Lewis, 6 Mart. La. 559; Rodney v. R. R. Co., 19 Ill. 44; Rev. Stats. Mass. 1705, ch. 19, § 2; Quincy, 29; Dyer v. Brounock, 66 Mo. 392; Jones v. Jones, 45 Md. 146;
      Jones v. Jones, 36 Md. 447; Willkinson v. Payne, 70 Pa. St 392; 4 D. & E. 468; Canteon v. Hood, 56 Ala. 519.
   Okey, J.

The property in.question is réal estate, and descended according to the lex rei sites; but as Thomas Williams ■was domiciled here, at the time of his death, the law of Ohio would likewise have governed, if the property had 'been personal. The question, however, is, as stated, as to' the statutes of Ohio regulating the descent of real property ; and undoubtedly, in Ohio, the legitimate children of a man dying intestaté inherit his real estate. If the marriage of Thomas Williams and Katie was in all respects valid, Edmund Williams is the heir; and it will be seen that the same result follows if the marriage was invalid. The act of 1805 (Chase, 515), “ regulating the course of descents and distribution of personal property,” provided in section 13, borrowing from the civil law, “that where a man having by a woman one or more children, shall afterwards intermarry with such woman, such child or children, if recognized by him, shall be thereby legitimated. The issue, also, in marriages deemed null in law, shall nevertheless be legitimate.” And that provision has remained in force, in substantially the same form,' to the present time. Chase, 906, 1314, 1790; 3 Curwen, 2273 ; 2 Swan & Cr. 504 § 16 ; Rev. Stats. § 4175.

We need not determine as to the precise effect of the Virginia marriage. If we assume it even to have been void,, the case is controlled by the provision quoted. If it was voidable, the case is still controlled by the statute, if, indeed, any such provision as to a voidable marriage was necessary. And clearly it is immaterial whether the marriage, “null in law,” took place in this state or elsewhere. For the purpose of determining to whom the real property in question descended, Edmund Williams is, by force of this statute, which, for the present purpose, we assume controls the case, to be regarded ■ as the legitimate son of Thomas Williams. True, acts were passed in 1804 and 1807 (Chase, 393, 555), in aid of the fugitive slave law, and imposing onerous disabilities on colored persons, and these blots upon our legislation were suffered to remain until 1849 (2 Curwen, 1466). Because of our policy toward colored' persons, thus indicated in our legislation, and because of the alleged incapacity of slaves to form any sort of contract, it is urged that the issue of slave marriages could not have been .contemplated when it was provided that the issue of marriages, null in law, shall be legitimate. But we are un willing to place any such limitation on the words of the statute. It is a familiar rule in the construction of statutes, that the language, where clear and comprehensive, is not to be limited in view of the particular instances which may be supposed to have led to its adoption, but the act should be held to embrace all cases fairly coming within its terms, if they are also within its reason and spirit. Goshorn v. Purcell, 11 Ohio St. 641, 649. Our conclusion that Edmund Williams inherited the property is supported by Wright v. Lore, 12 Ohio St. 619. ■ The heirs of La vina hold the property in trust for Edmund, and the court made the proper order as to the terms lipón, and manner in which he might obtain possession.

Judgment affirmed.


author: By the Court.

text:
    McDowell v. Sapp.
    A marriage between slaves, in a slave state, where such marriage had no legal validity, was of imperfect obligation, and, -before the emancipation proclamation, was so . far avoided by a marriage of the husband to another woman, valid at the place where solemnized, (hat on the death of the husband and second wife, she who was the first wife has no interest, as -against the issue by the second marriage, in the property acquired by such -husband and second wife during their cohabitation.
    Error to the District Court of .Cuyahoga county..
    In February, 1856, Peter Dunlap and Rachel Smith, colored persons, were married in Canada, where they were domiciled, which marriage was in all respects regular, and by the laws of Canada in all respects valid. In 185S, they removed to the city of Cleveland, where they resided as husband and wife, and were regarded by all persons as sustaining that relation, until August, 1877, when Mrs. Dunlap died intestate ; and Dunlap continued to reside there until June, 1881, when he died intestate. During the time 'they lived together as husband and wife at Cleveland, they accumulated property, real and personal, the real estate of the value of $5,000, and the personal property of the value of $5,000. The real estate he caused to be conveyed, through one Odell, to Mrs. Dunlap in good faith, so far as appears, and not to defraud creditors or for other unlawful purpose. The issue of the marriage consisted of three daughters, Sarah, Lucy and Lottie, all of whom are living and unmarried, the youngest having been born in 1864.
    There is no evidence to show that Peter Dunlap or Mrs'. Dunlap doubted, at any time, the legality of the marriage; nor is there any proof that Mrs. Dunlap ever heard that Peter Dunlap had contracted, in any form, any other marriage ; nor is it shown that their daughters ever heard of any other marriage than the one stated, until the petition, hereinafter mentioned, was filed.
    On December 24,1881, Maria McDowell, a colored woman, commenced a suit in the court of common pleas of Cuyahoga county, against Sapp, administrator of Peter Dunlap, arid Peter's above named children, and from the petition, or by admission, the following additional facts appear. In 1840 Peter Dunlap lived in Columbia, South Carolina, was a slave, and was called Adam McDowell. Maria, the plaintiff, also lived in that city, and was then a slave. In December, 1840, by consent of their masters, Adam and Maria were, at their request, regularly married in that state, by a minister of the gospel, according to the forms observed therein for marriages. They lived together in that state, as husband and wife, from that time until 1856, but there was no issue of' the marriage. In 1856 Adam escaped from slavery, went to Canada, and his subsequent history is as already stated. She never saw him again, and he was never again in South Carolina. lie sent her, in 1866, ten dollars, and the same amount in 1870, and stated to the person to whom he delivered the money, at Cleveland, the fact that lie liad married her. There does not appear to have been any other communication between them. She requested the administrator to file a jietition under Rev. Stat. § 6202, for directions as to his duty, and for the purpose of asserting her rights, and he refusing, she filed the petition' above mentioned, the prayer of which, is as follows : “ That the said court find, decree and adjudge that the plaintiff is the only true and lawful heir and distributee of the said Adam, and as such entitled to have and receive from the said L. W. Sapp, as administrator, the whole of said personal property left by said Adam McDowell; that the deeds to said Rachel Dunlap and said Odell may be set aside, as in fraud of the plaintiff’s right in the premises; that said real estate, and each and every part thereof, may be deemed to belong to this plaintiff; and that if the court find that said deeds wrere not made in fraud of the plaintiff’s right, that plaintiff shall then be decreed to have dower in said premises assigned to her therein; and she aslcs for such other and further relief as she is entitled to in equity.’’
    In the district court, to which the cause was taken by appeal, the court heard the same on petition,- answer, reply and testimony, and on such hearing the petition was dismissed; and this petition in error is prosecuted by Maria to reverse the judgment.

      W. G. Rogers, for plaintiff in error.

      JE. Sowers, for defendants in error.
   By the Court.

It is well settled that the validity of a marriage must be determined from the lex loei contractus. If valid where solemnized, it is valid elsewhere; if invalid there, it is invalid everywhere. Story’s Confl. L. §§ 84, 93; Bishop’s Mar. & D. § 390 ; Bar’s Int. L. (S. & B.’s ed.) 364. It will be seen tfiat exceptions to the rule exist, and how far they apply in cases of this sort is discussed in Harris v. Cooper, 31 U. C. Q. B. 182. It appears in Davenport v. Caldwell, 10 South Car. 317, a copy of the report of which case is made part of the recox’d, that the law of South Carolina, previous to the emancipation proclamation, with respect to slave marriages, was substantially the same as in all the states in which slaves were then held. We are disposed to view those marriages in the most favorable light which the law will warrant; but it is impossible to escape the conviction that, previous to emancipation, they were marriages of imperfect obligation. “It was,” said Swayne, J. in Hall v. United States, 92 U. S. 27, 30, “ an inflexible rule of African slavery, wherever it existed, that the slave was incapable of entering into any contract, not excepting the contract of marriage.” Mr. Bishop thinks there is a stronger reason for the invalidity of such marriages than inability to contract. He says : “ That the duties of husband and wife are incompatible with those of a slave, is a proposition evidently sound in law, and upon it the doctrine which denies to slavery the power of matrimony may well rest.” 1 Bishop’s Mar. & D. § 158. But although such marriages were of imperfect obligation, we are unwilling to say they were mere nullities. They were indeed not only countenanced, but, for most cogent reasons, encouraged by both white and colored, at the places where they were solemnized. A marriage celebrated during insanity of the parties, or where they were too young to give consent, or where impotence existed, is ratified by cohabitation subsequent to the removal of the disability ; a contract of marriage obtained by fraud, becomes unimpeachable by cohabitation after the fraud is discovered ; and a slave marriage becomes entirely valid by cohabitation subsequent to emancipation. But in all these cases whore there was no such ratification, the marriage might be avoided in some form. This is well illustrated by Shafher v. State, 20 Ohio, 1. That was an indictment against Shafher for bigamy. He married Elizabeth Emerich, March 19, 1848, when he wras less than sixteen years old; and while she was still living, on March 19,1850, he married Amanda Fitz, when he was less than eighteen years of age. The statute then in force fixed the ages at which persons might marry at eighteen in males and fourteen in females. The court hold that the first marriage was completely avoided by the second marriage, and hence, on that state of facts, Shafher was not liable to proseciition. Although that decision is not in all respects in accord with two or three other cases (1 Bishop Mar. & D. § 143 et seq.), it will be seen that this conflict in no way militates against Shafheps case as a pertinent illustration of the principle stated.

A case more directly in point is Harris v. Cooper, supra, which was fully argued and carefully considered in the Queen’s Bench, Upper Canada, in 1871. It appeared that in 1825 John Harris and Sarah Halloway, both slaves, living in Richmond, Virginia, were, with the consent of their masters, married by a minister of the gospel in the usual form of marriages in that state. They lived together until 1832, during which time there was issue of the marriage three children, one of whom still lives. In 1832, Harris escaped from slavery, changed his name to George Johnson, and became a resident of New York, whore in 1833 he was married in due form of law to a colored woman also named Sarah, and they cohabited together as husband and wife. In 1834 he became a citizen of Canada, and having accumulated property, died there in 1851. His wife by the slave marriage died in Richmond. The son by the slave marriage brought suit in Canada to recover the real estate in Canada, of which his father died seized, but it was held that he could not recover, and among other things it was said, that the first marriage, having been completely abandoned, was wholly invalid.

Mr. Bishop, in the last (6th) edition of his work on Marriage'and Divorce (vol. 1, § 163), states the law to be as follows: “According to usage, in all places where slavery existed in this country, the marriages between slaves were dissolvable without judicial sentence, wherever the parties were permanently separated. A separation at or before emancipation, therefore, would properly be deemed a divorce. For if the law takes cognizance of slave marriages, it must also of these slave divorces.” And see Pierre v. Fontenette, 25 La. Ann. 617; Washington v. Washington, 67 Ala. 281; Long v. Barnes, 87 N. C. 329.

We are not required to go to that extent in this case. Indeed, if Peter Dunlap had not disaffirmed the slave marriage by his marriage in Canada, we are by no means prepared to say that Maria McDowell would not bo entitled to the property by force of the slave marriage, the disability to which marriage was removed by emancipation. But we have no such case before us. Peter Dunlap did marry in Canada, in 1856, according to the laws in force there, and did not thereby commit the crime of bigamy, but performed an act perfectly lawful, and effectually avoided the slave marriage. He lived with the wife lie married in Canada twenty-one years, and until she died. They accumulated property amounting to $10,000, and raised a family of three daughters, now young women. ' There is no doubt that father, mother and daughters regarded the marriage as in all respects valid, and so the law regards it.However much our sympathy may be with the plaintiff, whose unfortunate condition was that of servitude, our duty is simply to declare the law. We have not been able to find a single case, nor do we believe one can be found, which would support us in saying that this property shall be wrested from the daughters of Peter and Rachel Dunlap. '

Judgment affirmed.


author: McIlvaine, J. Johnson, C. J.,

text:
    Moore v. Chittenden.
    The defendants, in an action against vendor and vendee, to set aside and cancel a deed on the ground of fraud, though both defendants are necessary parties defendants, yet where the only relief sought is a cancellation of the deed, are not united in interest within the meaning of section 4987, Revised Statutes.
    • Error to the District Court of Franklin county.
    Motion by Henry T. Chittenden, defendant, to dismiss petition in error as to him.
    And like motion by Mitchell and Watson to dismiss petition in error as to them.
    The petition in error prosecuted by John A. Moore et al. seeks to reverse a judgment rendered at the March Term 1881, ■ of the district court, dismissing an action therein pending against said Chittenden, and Mitchell and Watson, and one William Shields. The petition in error was filed in this court naming all the above named defendants as defendants in error and a summons in error was served upon William Shields, within two years from the rendition of the judgment sought to be reversed, but no summons in error was served upon either of the other defendants until after the expiration of that period, nor has the last named defendants waived the service of summons or otherwise entered their appearance in the proceeding.
    The judgment sought to be reversed is as follows :
    “ T-liis day came the parties and their attorneys, whereupon this cause came on to be heard upon the petition, the separate, joint and several answers of said James Watson and John G. Mitchell, the separate answer of said Henry T. Chittenden, the separate answer of William Shields, the reply of the plaintiffs filed January 8, 1879, the reply of the plaintiffs filed August 16, 1879, and the testimony, and was argued by counsel ; on consideration whereof the court being fully advised in the premises, doth find each and all of the issues joined between the plaintiffs and the said James Watson and John G. Mitchell in favor of the said Watson and Mitchell, and that the equity of the case is with them. And the court doth further find each and all of the issues joined between the plaintiffs and the said Henry T. Chittenden in favor of the said Chittenden, and that the equity of the case is with him. . And the court doth further find the issues joined between the plaintiffs and the said William Shields in favor of the said Shields, so far as the same relate to the sale and conveyance by him made under and in pursuance of the order of the court of common pleas of Franklin county in the pleadings mentioned of the real estate therein described, and so far also as said issues relate to the legality, validity and bona fidesoi said sale and conveyance. It is therefore ordered, adjudged and decreed that the petition of the plaintiffs be and the same is hereby absolutely dismissed as against the said James Watson and John G. Mitchell with costs. And it is further ordered, adjudged and decreed that the plaintiffs pay the costs made upon the issues joined between them and said Watson and Mitchell within sixty days from the close of the present erm of court, or in default thereof that execution issue for the same. It is further ordered, adjudged and decreed that the said petition be and the same is hereby’absolutely dismissed as against the said Chittenden, with costs. And it is further ordered, adjudged and decreed that the plaintiffs pay the costs made upon the issues joined between them and the said Chittenden in sixty days from the close of the present term of this court, or in default thereof that execution issue for the same. It is further ordered, adjudged and decreed that the said petition be and the same is hereby absolutely dismissed as to said Shields in so far as the same relates to the said sale and conveyance of the real estate in the pleadings described, and the.legality, validity and bonafides of .said sale and conveyance, and on plaintiffs’ motion it is further ordered that said Shields, within forty days from this date report to the court of common pleas of Franklin county the present condition of the said fund produced by said sale of said real estate, and that all the issues between the plaintiffs and said Shield as to said fund be heard and determined by said court of common pleas after the filing of his said report. The said Shields excepts to the last stated order directing him to report the present condition of said fund, and thereupon the plaintiffs except to the several findings, orders and judgment of the court against them, and filed in court a motion for a new trial of this case for reasons on file, which motion was submitted to the court and by the court overruled, to which ruling the plaintiffs except and the court gives the plaintiffs thirty days within which to prepare a bill of exceptions to be signed by the court, and the same is hereby ordered to be made a part of the record.”
    The nature of the original cause of action as stated in the petition was as follows:

      “ The plaintiffs say that heretofore, to-wit: on or about the 25th day of February, a. d. 1852, one John Armstrong, theretofore a resident and citizen of the county of Licking, Ohio, departed this life testate, and seized in fee simple of the following, with other, real estate, bounded and described as follows, to-wit” (describing a tract of land embracing about 38 acres).
    “ That by the last will and testament of said John Armstrong, deceased, lie gave and devised the real estate aforesaid to his daughter, Isabel Moore (the wife of A. J. Moore, and. mother of plaintiffs), to hold to her during her natural life, and at her death to be divided equally among her children. . . That afterwards, to wit: on the 16th day of September, a. d. 1867, the defendant, William Shields, was appointed aiid qualified as administrator de bonis non of said estate, with the said will annexed. .'. That said II. T. Chittenden is, and has béen ever since the appointment of said Shields as administrator de bonis non of the estate of said Armstrong, as aforesaid, an attorney and’ counselor at law, . . . and said Chittenden was, during that time, and until recently has been the trusted legal adviser of said plaintiffs, and their said mother, Isabel Moore, the devisee of said life estate, in said premises as aforesaid. And that while such fiduciary and confidential relations towards plaintiffs, and their said mother existed, he wrongfully and fraudulently conceived and undertook to carry out a plan, scheme and device to procure the title to said real estate, by contract, or judicial sale, for a sum much less than its real value, and against the provisions of said will so far as plaintiffs’ contingent remainder therein as aforesaid,'and to that end, and in collusion, or acquiescence on the part of said Shields, the administrator de bonis non with said will annexed of the estate of .said John Armstrong, deceased, the testator, he, the said Chittenden, and Smythe and Sprague, as the attorneys of said Isabel Moore (said Smythe and Sprague, being at the same time the attorneys of said Shields), did file a petition in said court of common pleas within and for said county of Franklin-, on or about the 1st day of October, a. d. 1867, for and in the name and behalf of said Isabel Moore, as plaintiff, and against the said plaintiffs herein, and said William Shields, as such administrator, &c., as defendants. . ’. That notwithstanding the want of service or voluntary appearance on the part of plaintiffs herein, and of the jurisdiction of .said court of their persons, or the subject of said action,' such proceedings were had in said case, that on pretence of an order.and decree of said court, at the November Term thereof, a. d. 1S67, in said case, wherein the said Isabella A. Moore was named as plaintiff, and the said John A. Moore and others, defendants, the said Wil-Jiam Shields, as administrator de bonis non, with the will annexed, of said John Armstrong, deceased, made report-“that he caused said real estate to be appraised by the oaths of George W, Manypenny, William A. Platt and James L. Bates, at $800 per acre, making for the thirty acres the sum of $24,000 ; and that after advertising the same for more than thirty days' in the Daily Ohio Statesman, dee., he did, on the 15th day of September, a. d. 1868, offer the said real estate for sale at-public vendue, at the door of the court-house, in the 'city of .Columbus, whereupon John G. Mitchell, James Watson and Henry T. Chittenden bid therefor the sum of $16,000, to be'paid-in pursuance of the advertisement of sale, and no person offering to pay any greater sum, and the said parties in interest-having assented to a sale for that sum. Plaintiffs say that the supposed order and decree of said court authorizing said sale, provided that said real estate should not bo sold for less than its appraised value, unless said parties otherwise agree, and-plaintiffs deny that they did so agree, or that said court had any jurisdiction or authority to make, any such order or conditional decree, or that said real estate was in fact sold at public vendue at the time and place aforesaid. And that such pretended sale was afterwards, to wit: on the 22nd day of September, a. d. 1868, approved and confirmed by said court, and said Shields ordered to make a deed for said real estate to the purchasers, and to pay taxes thereon and costs out of the proceeds of such sale. That no order or direction was made or given by said court as to the investment of the proceeds of said-supposed sale as required by law, and the ‘ Act to provide for the sale or lease of estates tail in certain cases,’ nor did said court find that the price obtained is'(or was when sold) the reasonable value of the estate sold, before or at the date of said supposed order directing said sale to be made as aforesaid, or at the time of the confirmation of said sale, and authorizing a deed to be made as aforesaid. That all of the proceedings in such case, for the sale of said real estate, the procuring of said order and decree, the report of said pretended sale, and the procuring a confirmation thereof as aforesaid, by said Chittenden, Mitchell and Watson, and Shields, were unlawful, and in fraud of the rights of plaintiffs herein : and in pursuance of the ¡fian, scheme and device of said Chittenden to procure the title of said real estate as aforesaid, and that said Mitchell and Watson, and Shields became and were parties and privies to the same. That Mitchell and Watson, and said Chittenden, were the principle parties in interest, and jointly interested ir said sale, and the profits to be derived therefrom. That at the time of said supposed sale to said Mitchell and Watson, and said Chittenden, as reported by said Shields as aforesaid, said real estate was worth from $24,000 to $30,000, as plaintiffs now believe, and charge the truth to be, and being in the corporate limits of the city of Columbus, in said county, its sale at that time, must necessarily and without any doubt do substantial injury to the said plaintiffs', and the heirs in tail and remainder as aforesaid. That said Chittenden, Mitchell and Watson have sold apart of said real estate-, and made large profits from the same; and that said Mitchell and Watson still hold possession of the residue, being a large and valuable part of said real estate, under said proceedings; and the deeds from said Shields to them as aforesaid, and deeds of quit-claim from said Chittenden to them for his pretended interest therein of one undivided half as joint purchaser thereof as aforesaid.”
    The prayer of the petition was as follows:
    “ The plaintiffs therefore pray that said defendants may be made parties herein, and that the rights of said plaintiffs, and each of them, under said will in the premises and real estate aforesaid may be adjudged and determined, and the supposed title to, and title of said Mitchell and Watson, and said Chittenden, as to so much of said real estate at least as is still in their possession, or under their control, or the possession or control of either of them, be set aside and held for naught; and that they, and each of them, may be required to account for the proceeds of any and all sales made by them, or either of them of any part of said real estate to innocent purchasers, over and above the amount they, or either of them, may have paid to said Shields, on the supposed sale thereof by him to them as aforesaid, or in case said sale is not set aside, and held for naught, and said Mitchell and Watson and Chittenden required to account as aforesaid, then that they may be adjudged and required to pay for said real estate the further sum of $8,000 the balance of the appraised value thereof, as aforesaid, together with interest on the same from the 15th day of September, 1868, and that said Shields be required to account for all of said purchase money, as aforesaid, and required to invest the same under the direction and approval of said court as aforesaid, or that such other proper person may be appointed by the court to be qualified and required to make such investment. And that said plaintiffs, and each of them, may have such other and further relief in the premises as they, or either of them, may be entitled to in law or equity, and such order and decree herein as equity may require.”

      Harrison, Olds & Marsh, for the motion.

      Charles Follett efe Son and F. W. Wood, contra.
   McIlvaine, J.

The right to prosecute a petition in error to reverse the judgment of an inferior court, does not exist in this state except as conferred by statute. Hence, these motions must be granted unless the plaintiffs in error show their right to prosecute this proceeding against the parties moving to dismiss it.

Section 6723, Revised Statutes, provides, No proceeding to reverse, vacate or modify a judgment or final order shall be commenced unless within two years after the rendition of the judgment,” &c. The question is, was this proceeding, as against Chittenden, and Mitchell and Watson, commenced within two years after the rendition of the judgment sought to be reversed. This question depends on the proper construction and application of section 4987, which by analogy, applies to proceedings in error. This section reads as follows:. “ An action shall be deemed commenced, within the meaning of this section, as to each defendant, at the date of the summons which is served on him, or on a co-defendant who is a joint contractor or otherwise united in interest with him.” “ A co-defendant united in interest with him ” does not embrace every co-defondant in the original action who was a proper, or even necessary party to the action. It may be conceded that all those united in interest with him were proper and necessary parties, bnV on the other hand, it is clear, that ’ all proper, and even necessary, parties defendant, are not united in interest. Hence, if Shields, who lias been served with process in error within the time limited, was not united, in liability with Chittenden, Mitchell and- Watson, who were not so served within, the time limited, there is no authority to prosecute the latter by bringing them into court by summons in error, after the expiration of the time limited for commencing such proceeding, unless the form of the judgment makes all the. defendants below united in interest.

We think it could not be successfully maintained, that a general judgment dismissing an action against all the defendants, would create a unity of interest between them within the meaning of ■ this section. True, they would have a common interest in defending such judgment, but not a unity of interest, unless indeed, the alleged liability was joint. But in the case before ns, the findings and judgment were several.

Shields had no interest in the judgments in favor of Chittenden, Mitchell1 and Watson, and these have no interest in the finding and judgment in favor of or against Shields.

This brings us to consider whether the plaintiffs below sought to enforce a joint or united liability ■ against the defendants.

1 The prime object cf the action was to set aside a deed or conveyance executed by Shields, as trustee of plaintiffs, to the other defendants. The foundation for this" relief was the alleged fraud 'of Chittenden, “ in collusion or acquiescence on the part of said Shields,” to which said Mitchell and Watson became “ parties or privies.” To this proceeding Shields was a necessary party; but was not united in interest with the other defendants in making a defense, as no redress on the ground of fraud, as against Shields, was sought, save only the' cancellation o'f the deed, and such decree could in no wise have affected him. All other redress, on the ground of fraud in the purchase of the land, in case cancellation of the deed was not obtained, was against Chittenden, Mitchell and Watson. On the other hand there is no pretense that Chittenden, Mitchell and Watson were at all interested in any relief prayed for, as against Shields. Hence, we think these defendants were not united in interest with Shields within the meaning of the statute.

I have referred to the prayer of the original petition, not because the nature of the interest, whether united or not, can be determined by the terms in which relief is sought. That question must be determined by the facts pleaded. Eut the specific relief prayed for is such, that it shows that in the mind of the pleader, the liability was neither united nor joint. The action was not to recover damages for the alleged fraud, but to set aside the deed, and if that could not be done, to compel those who had come into the possession of the property to account for its full value. It is not alleged that Shields had secured any use of the property to himself. Hence, the prayer for general relief does not change the character of the several liabilities sought to be enforced in the suit.

Motion granted.

Johnson, C. J.,

dissenting. A careful analysis of the case will show that the primary purpose of the action below was to set aside a conveyance and cancel a deed, made under the color of an order of salp fraudulently procured by the united action of Shields, Chittenden, Watson and Mitchell. These allegations were pat in issue by separate answers. This issue was found in favor of these four defendants. All were united in interest in this defense, though answering severally. All were so united on error in maintaining this judgment in their favor. All would be jointly affected by a judgment in favor of the plaintiffs.

Shields’ administrator, as vendor, and the others as vendees, were liable jointly either to have the land restored to plaintiffs, or to make compensation if the land had passed to bona fide purchasers.

Again, Shields was the trustee to hold and invest the purchase-money arising from the sale, and if the sale was allowed to stand, then the prayer was that the difference between the appraisement §24,000, and the price paid by the vendees $16,000, should be paid by the vendees to the vendor, to be held by him as executor or trustee for the benefit of plaintiffs. If this relief had been granted, both vendor and vendees were necessary parties' to the decree, but it was refused and a judgment dismissing plaintiff’s petition in that behalf was rendered. To reverse this all the defendants were necessary parties defendant, and all were united in interest in maintaining this judgment against plaintiff.

Again, there was a general prayer for equitable relief. This gave the court the power either to cancel the deed and restore the title to the heirs, and in so doing order a return of the $16,000 by the vendor to the vendees, or to allow the title to stand, and decree such additional compensation to the heirs,, as the value of the land exceeded the price paid. If all were, as charged, guilty of fraud, all four defendants were jointly liable to a money judgment for this difference. But on this issue judgment was against the plaintiffs and in favor of all the defendants. They are united in interest in maintaining this judgment, though in form it may be several.

If the majority of the court is correct, the fraudulent vendees are now out of court, and should this court reverse the judgment in this respect, it will be unable to render the judgment that the court below should have rendered, as the vendees who are thus jointly liable have been dismissed.

Thus the court will be deprived oí the power to render any adequate judgment for the wrongful acts of all.

For these and other reasons, I cannot assent to the judgment. My dissent is not to the syllabus, but to the construction which is placed upon the pleadings and judgment below.

I think all defendants, though not joint contractors, are “ otherwise united in interest,” and therefore that service on one saves the case as to all, as is settled by a great number of • cases in Ohio, with which this opinion is manifestly in conflict, especially with Hawes v. Sidener, 37 Ohio St. 532, 6th point, where the exact question was decided. See also Buckingham v. Commercial Bank, 21 Ohio St. 131; Secor v. Witter, 39 Ohio St. 218; Wilkins v. Phillips, 3 Ohio, 49; Meese v, O’Keefe, 10 Ohio, 362; Bradford v. Andrews, 20 Ohio St. 208; Massie v. Mathews, 12 Ohio St. 361; Sturgess v. Longworth, 1 Ohio St. 544; 10 Ohio, 17.


author: Johnson, C. J.

text:
    Arrowsmith v. Hamering.
    April 18, 1883, an act was passed (80 Ohio L. 169) amending section 6710, Revised Statutes, which allowed petitions in error to bo filed in this court without leave, so as to require leave to be first granted. It repealed the original section, and enacted that the amended section “ shall taire effect, and be in foreefrom and after its passage, and apply to all cases and proceedings hereafter brought in or into the supreme court.”
    On the same day, but whether before or after this act was passed, does not appear, a petition in error was filed in this case without leave of this court.
    On motion to dismiss.

      Held: 1. This act took effect on the day of its passage, and by presumption of law, from the commencement of that day, and not from its expiration. Koitenbroek v. Gracraft, 36 Ohio St. 584, distinguished.
    2. This presumption will not prevail where it is in conflict with any right required in actual points of time on that day, before the act took effect. In such case the exact time in the day may be shown.
    3. In the absence of proof, by the plaintiff in error, showing tliat his case was ponding on that day, before the act was .passed and took effect, the presumption of law will prevail, that the act took effect from the commencement of the day.
    Motion to dismiss petition in error.
    The petition in error was filed, without leave, April 18, 1883. On the same day, “An Act to amend sections 155, 6710, 6711 and 7356 of the Revised Statutes ” was passed (80 Ohio, L. 169). By its terms, original section 6710, which allowed a petition in error to be filed as of right, was repealed, and as amended it required that leave to file such petition must first be obtained from this court.
    By the second section of the act it is provided, that: “this Act shall take effect and be in force from and after its passage, and apply to all cases and proceedings hereafter brought in or into the supreme court.”
    There is no proof showing at what time in the day of the 18th of April, the petition was filed, nor whether, in point of time during that' day, it was before or after the act which took away the right to file without leave was signed by the presiding officers of the two houses of the legislature. Each bears date April 18, 1883, but a certified transcript of the proceedings of the senate' is filed showing that this act which originated in the senate passed the house and was sent to the senate with certain amendments, on the sixteenth of April, 1883, and that on the seventeenth of April, these amendments were concurred in by the senate. It further appears that on the eighteenth of April the joint committee on enrollment' reported that the bill was correctly enrolled. At' 3 o’clock of the same day a message was received from the house that the bill had been signed in its presence, and' thereupon it was signed in the presence of the senate.

      Henry B. Harris and Cox & Cochran, for the motion :
    The law takes no notice of fractions of a day, and regards a law which takes effect from and after' its passage as in force during the whole of the day on which it was passed. Arnold v. United States, 9 Cranch, 104; Matthews v. Zane, 7 Wheat. 164; Pierpont v. Graham, 4 Wash. C. G. 232 ; In re Howes, 6 Law Reporter, 297; In re Welman, 7 L. R. 25; s. c., 20 Vt. 653; Carrier v. Baum, 13 B. R. 208 ; Mallory v. Hiles, 4 Metc. (Ky.) 53; Chiles v. Smith, 13 B. Mon. 460; Koltenbrock v. Cracraft, 36 Ohio St; 584; Wood v. Foot, 42 Ala. 641; Orth v. McCook, 4 W. L. M. 215.

      Hewbegin & Kingsbury, contra :
    The act in question did not take effect from the first moment of the day' of its passage. ' Seaman v. Eager, 16 Ohio St. 214; 4 Am. Law Register (N. S.) note on page 222; Bemis v. Leonard, 118 Mass. 502 and cases cited; Warren v. Slade, 23 Mich. 1; Lester v. Garland, 15 Vesey Jr. 248; Webb v. Fairmaner, 3 M. & W. 473; Cornell v. Moulton, 3 Denio, 12; Ex parte Dean, 2 Cowen, 605; Maries Ex'rs v. Russell, 4 Wright, 372; Weeks v. Hull, 19 Conn. 376; Lubbock v. Cook, 49 Texas, 96; Sheets v. Seldon's Lessee, 2 Wall. 190; Benson v. Adams, 69 Ind. 353 ; Towell v. Hollweg, 81 Ind. 154; Thorne v. Mosher, 20 N. J. Eq. 257; King v. Moore, Jefferson, (Virginia) 9; See also sec. 1951 of Revised Statutes; Koltenbrock v. Cracraft, 36 Ohio St. 584.
   Johnson, C. J.

This motion is. not. well taken if the petition in error was a pending action or proceeding, when the act of April 18, 1883, took effect, because section 79 of the. Revised Statutes provides that the amendment or repeal of. a statute,- shall in no manner affect, pending actions, prosecutions or proceedings civil or criminal, and when the repeal or amendment relates to the remedy it shall not affect pending actions, prosecutions or proceedings unless so expressed.”

The provisions of sec. 6710, as amended, relate toa remedy in a civil action. They do not affect pending actions or proceedings, but in express terms the act applies'** to all cases and proceedings hereafter brought in or into the supreme court.” In behalf of the motion to dismiss, two grounds are relied on. .

1st. That the act of April 18, which took away the right to file a petition in error without leave, took effect from and after the first moment of the day of its passage though in fact, not signed by the presiding officers until some time towards the close of the dayr, and, therefore, it was in force during all of that day, and no petition in error could, o.n that day, be filed without leave. ' ...

2nd. If this is not so, then the journals of the two houses of the legislature show the act was, in fact and in law, passed on the 17th, though not enrolled and signed until the next day, and therefore an action commenced on the 18th was after the act passed and took effect! Assuming, without deciding, that the repealing statute did not take effect until the 18th, the point to be determined remains, was the petition in error filed after it took effect or before % If before it took effect then by section 79 of the Revised Statutes it was..a pending case under original section 6710, and the repeal did not affect it; but if after, then leave must be obtained and the motion is well taken. • - . -

This act wu>s passed and took effect from and after its pas: sage. On the same day the petition in error was filed. Which was first in point of time on tliat day, we are not advised by proof. As there is no law requiring that the exact time in the day shall be noted of the passage of an act, or the commencement of an action, there is no record evidence of the fact, but resort may be had to other proper proof. If we were advised of this fact, it would doubtless be proper to disregard the maxim that the law knows no fractions of the day, and to determine as a fact the exact time during the 18th day of April, the petition was filed, and the act was passed, and if the former was first in time to hold that the repealing statute, in view of the provisions of section 79, did not affect it, though it relates to the remedy merely.

This would seem to follow from the terms of art. 11, sec. 28, of the constitution, which provides that the general assembly shall have no power to pass retroactive laws; and from the provision of section 79 of the Revised Statutes, which provides that a repeal or amendment of an existing statute, even as to the remedy, shall not affect a pending action unless it is expressly so provided in the repealing statute.

These provisions would seem to apply as well to parts of a day as to whole days.

A law passed in the latter part of a day, if it affected transactions of the earlier part of the day, would be retroactive in its operation as fully as if they took place the day before. So I think if this petition in error was filed on the same day, but before the repealing statute was passed and took effect, it would be a pending case within the meaning of section 79 R. S. The rule that the law never regards the fractions of a day is only observed for the purposes of justice, but when its application would defeat a vested right, or otherwise work injuriously, it will not be applied. Thus in Seaman v. Eager, 16 Ohio St. 209, it was held, that the exact moment in a day might be resorted to, to determine the rights of parties arising under the acts relating to the filing and refiling of a chattel mortgage, and that time is to be counted from the moment of such filing, and not from the day. The same rule was applied in Follett v. Hall, 16 Ohio, 111, where a mortgage was filed on the first day of a term of court, but before the court cont vened. So where an attachment was sued out at seven o’clock, p. sac., of March 8th, and a petition in bankruptcy was filed at two o'clock and fifty minutes in the afternoon of the 8th of July, it was held, that as the bankrupt act dissolved all attachments within four months before the commencement of proceedings in bankruptcy, and as the actual time was less than four months by four hours and ten minutes, the attachment must fall. Westbrook Man. Co. v. Grant, 60 Maine, 88. The same rule has been applied when it becomes important to ascertain the order in which two or more statutes bearing the same date were passed. Bishop on Written Laws, § 29. To the same effect are: National Bank v. Burkhart, 100 U. S. 686; Lang v. Phillips, 27 Ala. 311. So where there are two statutes containing repugnant provisions, the one last signed by the governor is a repeal of the one previously signed. Southwark Bank v. Commonwealth, 26 Pa. St. 446. And in People ex rel. v. Clark, 1 Cal. 406, it was held, that a statute which was to take effect from and after its passage, takes effect from the moment it is approved by the governor, and for the purpose of determining the right of a person to an office, it is competent to inquire at what particular point of time in the day it took effect. See also Gardner v. The Collector, 6 Wall. 499, where it is said to be settled on principle as well as authority, that whenever a question arises in a court of law as to the time when a statute takes effect, appropriate proof may be resorted to, to determine when the act took effect, that is, the exact time in the day.

No such proof was offered in the case at bar. If the plaintiff in error relies on the fact that his action was pending on the 18th before the actual time of the passage of the statute in question, he must, in order to defeat the presumption that it went into effect the first moment of that day, show that his. petition was first filed. This he has not done, and wo are left to the presumption that arises from the date of the act.

As section 6710 relates to the remedy merely, we are not embarrassed by any question of vested rights, or by the provision of the constitution, art. 11, sec. 28, relating to retroactive laws. His right, if he has one, arose under original section 6710, and is saved by section 79, which saves pending actions in ease of a repeal of a statuté relating to the remedy. This statute took effect from and after its passage,” and not from and after a day named in the act. ' The day it was enacted is to be included. When the computation is to be made from an act done, the day on which it is done is included. In this respect it differs from a statute repealing a former statute on the same subject, which is to take effect from and after a day named therein. In that ease it does not take effeet until the expiration of the day named. Koltenbrock v. Cracraft, 36 Ohio St. 584.

By its terms the act took effect on the ISth and not on the 19th of April, and the presumption arises, in the absence of any proof of the exact time of that day on which it was passed, that it took effect from the first moment of that day.

Formerly in England the rolls of parliament were strung together as one act, the only date being that of the assembling of parliament. In that case the presumption was that the act took effect fz’om the fiz'st day of the session, the record being the sole guide. Latters v. Patten, 4 D. & E. 660.

The act of 33 Geo. III., c. 13, pz-ovided that after 1793, the day of the royal assent to an act was required to be izidoz’sed on the act, and the date of that indorsement fixed the day the act should take effect, and by construction the act took effect from the first momezrt of that day. Tomlinson v. Bullock, 4 Q. B. D. 230.

The rule thus stated, governs, except whez-e sozne provision of law is violated, or when adherence to it would work injustice. When this would result, the fiction that the law knows zio fraction of a day would yield to proof of the exact time in the day an act was passed. But as no case is made by the plaintiff in error to enfoz’ce this principle, we are left to the-ordinazy presumption that the act of April 18 took effect from the commencement of that day, and, therefore, there was no “pending case ” when it took effect. Bishop on Written Law, chap. IV, and notes; Arnold v. United States, 9 Cranch, 104; In Re Wyman, Chase Dec. 227; National Bank v. Burkhart, 100 U. S. 686; Matter of Richardson, 2 Story, 571.

Motion sustained.


author: Owen, J.

text:
    Curtis v. National Bank.
    B., an administrator of a solvent estate, bought of M. a monument for his intestate’s grave, gave M. his negotiable note, as administrator, and took' M.’s receipts showing payment as administrator. M. sold and transferred this note before duo to P. B. thereafter made settlement in the •probate court, which allowed him credit in his account for the amoünt of the receipts as payment. Of this settlement and allowance of credit P. had no actual notice. P. thereafter recovered a judgment against B., as administrator, upon this note, to be satisfied out of assets in his hands, execution upon which was returned unexecuted for want of such assets. B. refused on demand of P. to pay this judgment. Held :

    1. The refusal of B. to pay this judgment was not a breach of the conditions of his administration bond, and his sureties therein were not estopped in an action upon it, to deny the validity of such judgment.
    2. An administrator has no power to bind the estate of his intestate by a negotiable note given by him as administrator.
    Error to the District Court of Butler county.

      Thomas Millikin, for plaintiff in error:
    The non-payment of the note did not constitute a breach of the condition of the administration bond, and hence the sureties are not liable. The note was wholly unauthorized by the statute, and should have been regarded as the personal contract of Thomas L. Boyd. The administrator’s duty is to administer the estate according to law. Rev. Stats. § 4199; Sumner v. Williams, 8 Mass. 209 ; Austin v. Munro, 47 N. Y. 366; Ferrin v. Myrick, 41 N. Y. 315, and cases there cited; Kesler v. Hull, 9 Am. L. Reg. (N. S.) 447 ; s. c., 64 N. C.; 2 Williams Ex’rs 1515; Holderbaugh v. Turpin, 75 Ind. 84; 2 Blackf. 47; Harding v. Evans, 3 Porter (Ala.) 221 ; s. c., 29 Am. Dec. 255; McEldery v. McKenzie, 2 Porter (Ala.) 33; s. c., 27 Am. Dec. 643; Pierce v. Smith, 4 Am. Dec. 588 ; Lucht v. Behrens, 28 Ohio St. 231; Conger v. Atwood, 28 Ohio St. 134.

      John E. Smith, and Jas. E. Campbell, for defendant in error:
    The judgment on the claim against the administrator is conclusive on the sureties, in an action on the bond, unless impeached for fraud or mistake. 3 Ohio, 487; 18 Ohio, 225-228; 17 Ohio St. 242-252.

      Thomas Millildn, in reply, commented on authorities cited by defendant’s counsel, and claimed that the fallacy of their argument in its application to the case before the court is in improjierly assuming that the judgment is on “ a claim against the estate ;” whereas the claim against the estate was receipted by its owner, Messerly, and the administrator obtained credit for the same in his settlement in the probate court.
   Owen, J.

In 1876, Tilomas L. Boyd, as administrator of Firman Probasco’s estate purchased of A. E. Messerly a monument for his intestate’s grave, paying a part thereon in money and giving his note, as administrator, for the balance, payable to the order of Messerly, who thereupon gave to Boyd, as administrator, receipts for $450, as paid to him by Boyd for the monument.

In May, 1877, Messerly sold and. transferred this note, before due, to the Farmers’ National Bank of Franklin. In April, 1878, Boyd made settlement of his accounts in the probate court, which approved them, allowing him credit upon his receipts for the $150 as paid for the monument, and finding still in his hands $1,218 which was ordered to be paid to the widow and heirs of the intestate. The bank had no notice of it, nor of the allowance of the credit to Boyd of the $150.

In October, 1878, the bank recovered a judgment upon this note against Boyd, as administrator, for $352.29 and $6.27 costs, to be levied of the goods of the intestate in his hands. An execution promptly issued upon this judgment according to its terms, upon which the sheriff made return that he found “no goods or chattels, lands or tenements belonging to the intestate in the hands of T. L. Boyd on which to levy.”

In January, 1879, the bank brought suit against Boyd jointly with Curtis and Ilill, his sureties, upon the administration bond, alleging as breach of its conditions the failure and refusal of Boyd to pay this judgment.

Neither Curtis nor Hill had actual notice of the proceeding to recover, or the recovery of this judgment. In the trial below, the bank recovered judgment against the defendants below for $388 and costs, which was affirmed on error by the district court.

The present proceeding is by Curtis and Hill to reverse these judgments.

If, upon the facts above stated, the failure of Boyd to pay the judgment recovered upon the Messerly note was a breach of the conditions of the bond, the judgments below should be affirmed ; if not, they should be reversed.

At the time this monument was purchased, it was lawful for the probate court, at its discretion, to allow the administrator in his settlement any just and reasonable “amount expended ” for a monument; but the administrator was not allowed to interfere with the heirs of the intestate in erecting one. S. & S. Stat. 356. Boyd had no power to bind the estate, unconditionally, by the purchase of a monument. He took the risks of a refusal of the probate court to allow the “ amount expended ” by him for it, and of his interference with the heirs in erecting one. In either contingency the estate would be exonerated from the burden of its cost. But ho made an unconditional purchase; paid part of the price in money, gave his note for the balance, and took receipts evidencing payment in full for the monument. In this he clearly exceeded his power as administrator. But it is urged that the “amount expended” for the monument was allowed by the probate court. True, but that court was not called upon to approve an executory contract by the administrator to pay in future for the monument, nor to approve his act of giving a negotiable note for it. The transaction was presented to that court as an executed one, and the vouchers were evidence of actual payment. They were, as such, approved, and upon the faith of them the settlement was made. If Hesserly, who empowered the court, by his receipts, to give credit to Boyd, had been plaintiff below, instead of the bank, he could not have been heard to say that the monument was not paid for, and thus collaterally question the settlement, which as a creditor he could have directly attacked. 76 Ohio L. §§ 3, I, p. 957.

This settlement not only determined the rights of the distributees, but was the test and measure of the liability of the sureties. .Did Messei-ly impart to the bank, by the transfer of the note, a better title than his own? If he did, it was in virtue of its negotiable qualities and its transfer before due. Could Boyd bind the estate of his intestate by giving negotiable paper as administrator? This would be a dangerous power and would enable him to do that by indirection which the law does not permit to be done by direct means, — charge his intestate’s estate unconditionally by acts which the law contemplates shall depend for their validity upon the supervision and approval of the court appointing him. To treat those who acquire, before due, and without notice of equities, negotiable paper' issued by a personal representative as such, as innocent purchasers, and thus disarm the estate of its just defenses, is to leave it an easy prey to his improvidence or corruption.

It is not 'only the plain policy of our law, but it is due to his sureties, that the administrator bo held rigidly within the express authority of the law in the administration of his trust. Lucht v. Behrens, 28 Ohio St. 240.

That the giving of a negotiable note, as administrator, is such a departure from his authority as to relieve the estate, and hence his sureties, from liability, is a proposition so firmly established both upon principle and authority as to leave no excuse for controversy. King v. Thom, 1 Term, 489; Cornthwaite v. First National Bank, 57 Ind. 268; Bittenhouse v. Ammerman, 64 Mo. 197; Christian v. Morris, 50 Ala. 585; Kessler v. Hall, 64 N. C. 60 ; 1 Edwards on Bills and Notes, § 75 ; Gregory v. Leigh, 33 Texas, 813. See also Ferrin v. Myrick, 41 N. Y. 315; Austin v. Munro, 47 N. Y. 360.

But it is maintained by counsel for the bank that “the judgment against the administrator is conclusive on the sureties unless impeached for fraud or mistake,” and that “ the plaintiff having no actual notice of the settlement is not estopped to maintain the action on the bond against the sureties.” The infirmity of this reasoning is in its assumption of the very thing in controversy, the liability of the estate upon the note and judgment. As the estate was not bound by the note, the sureties are not estopped to deny the validity of the judgment upon it. We conclude, then, that whatever liability Boyd may have incurred individually upon the note or judgment, they did not so far create or evidence a liability against his intestate’s estate as to render his refusal to pay the judgment a breach of any of the conditions of the bond, and hence, upon the facts presented upon 'the record before us, Curtis and Hill, the sureties, were entitled to judgment.

Judgment reversed.


author: Follett, J.

text:
    Insurance Company v. Williams.
    A soliciting agent, procuring for an insurance company risks and applications on which policies are issued, who fills up the application, is, in so doing, the agent of the company, and not of the insured; and if the agent make a mistake in wrongly stating facts which were correctly given him by the insured in preparing the application, the company is bound by and responsible for such mistake.
    Error to tlic District Court of Allen county.
    In December, 1876, at Allen county, Williams made application in writing to the Farmers’ Insurance Company (a stock company), for insurance upon his dwelling-house, household furniture and clothing therein, and received a policy of insurance thereon from the company. The application and policy constituted the contract.
    The application was made upon the solicitation of, and written by, Kemer, the company’s agent, whose duties, powers and authority wore confined and restricted to soliciting risks for the company, receiving applications therefor, and forwarding the same to the comjiany, and collecting premiums upon policies issued. To enable the agent to prepare it, Williams gave him a faithful and true statement of the conditions and surroundings of the property; and among other things, that the flue in the kitchen part of the house was an iron stovepipe, and passed up through the roof of the kitchen, and was in good condition, and he directed the agent to state the same in the application ; but the agent, by mistake, and without the knowledge, of Williams, stated in the application that the flue was made of brick. In ignorance of this mistake and believing the application contained the statement that the flue was iron stovepipe, which was the intention and contract of said parties, Williams signed the application without reading it or hearing it read, but without fraud or falsehood on his part, and delivered it to the agent to be sent to the company for its action.
    In the application Williams covenanted and agreed with the company that the statements and representations contained therein were a just, full and true exposition of all the facts and circumstances in regard to the condition, value and risk of the property, and agreed to keep the flue in good condition. The soliciting agent sent the application to another agent of the company, and this last agent sent it to the company for action thereon. The policy was issued and sent to Williams, witliout knowledge of the mistake coming to the last mentioned agent or to the officers of the company ; and the premium was paid.
    April 12, 1877, the property (which was of greater value than the insurance thereon) was consumed by fire -which did not originate with said flue, of all which the company had due and legal notice and proof. The risk of the property by reason of the flue being of iron stovepipe, was very much increased from what it would have been had it being made of brick.
    Payment of loss was refused by the company, and Williams brought suit in the court of common pleas of Allen county, praying that the application and contract by and between the parties might be reformed, and the mistakes therein corrected ; that the actual representations made be inserted in the application and held to be a part of the contract of insurance; and that he have judgment for the amount of his loss insured.
    Trial was had and the prayer of the petition was granted, and the cause appealed to the district court of Allen county.
    On the trial in the district court on the above as “ agreed facts ” in the case, it was adjudged and decreed by the court that the application be reformed. That the representation therein contained shall read : “ That the flue for the escape of the smoke in the kitchen was made of iron, commonly called stovepipe, and that the stovepipe passed out through the roof of the kitchen,” in accordance with the actual contract of the plaintiff and defendant, and that plaintiff has ever since main-' tained the same in as good and like condition as the same was at the time of making the application by the plaintiff and the issuing of the policy by the defendant, and thereupon rendered, judgment for Williams against the Farmers’ Insurance Company for the amount of the loss insured, as-prayed for by Williams.
    This case is in this court on alleged errors of the district court in rendering the decree and judgment.

      Critchfield <& Graham, for plaintiff in error:
    1. This was an action for equitable relief in the reformation of a contract and specific performance. Courts of equity will relieve a party from the consequences of fraud, but will not permit him to set up a contract into which the other party never entered.
    2. It is not claimed that the agent acted fraudulently, or that he misled the defendant by concealing the error from him, or that he induced him to forego reading it or having the application read to him. He signed the proposal knowing that it was to be sent to the company for others than the agent to pass upon. It was his duty, therefore, to use that diligence that careful and prudent men exercise in matters of such importance, and see to it that his application, when signed, contained nothing but what was true, and fairly representing the facts so far as they affected the risk.
    Omitting to do this, lie was equally responsible with the agent for the mistake, and equity will not relieve him from his own carelessness. When the duty of the agent is restricted to soliciting risks, receiving applications therefor, and forwarding them to the company, and the applicant signs his projDosal without reading it, and the comjmny issues the policy upon the faith of the representations contained in his proposal, without notice of any mistake, or that the risk is other than that described, in the absence of fraud, the assured will be held to the contractas evidenced by the policy and application, and courts of equity will not relieve him from the consequences of any mistake for which he is in whole or in part responsible, nor require the company to perform a contract it never made. Wood on Ins. 805-808; Fowler v. Scottish Equitable Life Ass. Co., 28 L. J. Ch. 225; s. c., 4 Jur. (N. S.) 1, 69; Guernsey v. Am. Ins. Co., 17 Minn. 104; Ryan v. World Life Ins. Co., 41 Conn. 178; Cooper v. Farmers' Ins. Co., Cent. L. J. for the year 1879, p. 416; American Ins. Co. v. Gilbert, 27 Mich. 431; Cooper v. Farmers' Co., 50 Pa. St. 299; Smith v. Ins. Co., 12 Harris 320; Patterson v. Ben. Franklin Ins. Co., 81 Pa. St. 454; State Ins. Co. v. Arther, 30 Pa. St. 315; Lowell v. Middlesex Ins. Co., 8 Cush. 127; Lee v. Howard Ins. Co., Gray, 538; Richardson v. Maine Ins. Co., 45 Me. 344; Goddard v. Monitor Ins. Co., 108 Mass.; McCoy v. Metropolitan Life Ins. Co., 133 Mass.; Ayers v. Hartford Ins. Co., 17 Iowa, 176; Ætna Ins. Co. v. Cox, 29 Inch 468; Chatterton v. Canadian Ins. Co., 26 U. S. (C. P.) 450; Brice v. Lorillard Ins. Co., 55 N. Y. 240; Mead v. Westchester Ins. Co., 64 N. Y. 458; Fellowes v. Madison Ins. Co., 2 Dis. 128; Elster v. Cin. Eq. Ins. Co., 1 Dis. 412; Lydan v. Columbus Ins. Co., 18 Ohio, 459; Dayton Ins. Co. v. Kelley, 24 Ohio St. 345; State Ins. Co. v. Tates, 28 Gratt. 585; Mitchell v. Lycoming Ins. Co., 51 Pa. St. 21; Franklin Ins. Co. v. Martin, 40 N. J. L. 568.

      Theo. D. Robb, for defendant in error:
    Agents of insurance companies, in soliciting insurance, who undertake to prepare the application for the insured, are held to be the agent of the insurance company, in so doing, and not of the insured. See Insurance Co. v. Wilkinson, 13 Wallace, 222; Union Ins. Co. v. McGookey, 33 Ohio St. 555; Columbia Ins. Co. v. Cooper, 50 Pa. St. 340; Beebe v. Hartford Mut. Ins. Co., 25 Conn. 51; Woodbury Saving Bank v. Charter Oak Ins. Co., 31 Conn. 528; Ins. Co. v. Mahone, 21 Wallace, 152; Peoria M. F. Ins. Co. v. Hall, 12 Mich. 202; Miner v. Phoenix Ins. Co., 27 Wis. 700, and authorities there cited; McBride v. Republic Ins. Co., 30 Wis. 567; Hough v. City Fire Ins. Co., 29 Conn. 22; Planters’ Ins. Co. v. Sorrels, 1 Baxter, 352, see 235 Am. R. 781; Howard Ins. Co. v. Brunner, 23 Penn. St. 57; Mass. Life Ins. Co. v. Eshelman, 30 Ohio St. 647; Malleable Iron W'ks v. Phoenix Ins. Co., 25 Conn. 465; Beebe v. Hartford Mutual Ins. Co., 25 Conn. 51; Woodbury Savings Bank v. Charter Oak Ins. Co., 31 Conn. 519; Commercial Ins. Co. v. Spanknable, 52 Ill. 53; Keeth v. Globe Ins. Co., 52 Ill. 518; Rowley v. Empire Ins. Co., 36 N. Y. 550; Combs v. Hannibal Ins. Co., 43 Mo. 148; Ayers v. Home Ins. Co., 21 Iowa, 185; Ins. Co. v. Throop, 22 Mich. 146; Kelly v. Ins. Co., 3 Wis. 254; May v. Buckeye Ins. Co., 25 Wis. 291; Columbia Ins. Co. v. Cooper, 50 Pa. 331; N. E Ins. Co. v. Schetteler, 38 Ill. 166; Molier v. Penn. Fire Ins. Co., 5 Rawle (Penn.) 342; Eames v. Ins. Co., 94 U. S. 184; Gerhauser v. North British Merchants' Ins. Co., 7 Nev. 15; Wood on Ins. 624-5.
   Follett, J.

Did the district court commit error % This depends upon whether or not Kcmer, in writing the application, did it as agent of the insurance company, and if he did, was the insurance company responsible for the mistake ? For if these two questions are answered in the affirmative, it is not contended that there was error, and Williams would be entitled to the decree and judgment; and if either one is answered in the negative, there was error.

The agent had power to solicit risks for the company, receive applications therefor, and forward the same to the company. It is a general rule that when a power is conferred upon an agent, he has by implication such incidental authority as is necessary to carry his power into effect; and a principal is liable for the wrongful acts of his agent acting within his employment. The principal caiinot take the benefit of the agent’s acts, and avoid their burdens. So complete is the identification of principal and agent, that notice to an agent on the subject of his employment is legally notice to the principal, although it be not in fact communicated to the principal.

Applying these principles to this case, there was no error in the district court. And we are sustained in this view by the weight of modern authority.

In Woodberry Savings Bank and Building Association v. The Charter Oak Fire and Marine Ins. Co., 31 Conn. 517, the supreme court of error say, “ It is the settled policy of our law to treat local agents of insurance companies, who arc authorized to procure and forward applications for insurance, as the agents of the companies, and not of the applicants, in any mistakes of the application made by them or by the applicant under their direction.” In Combs v. Savings and Ins. Co., 43 Mo. 149, the supreme court say, “ The authority of the soliciting agent of an insurance company to take applications for insurance carries with it the legal implication of authority to fill up the application, and do all those things which may be needful in perfecting it.” That was a case sought to be defeated on the ground of false representations and warranties in the application. Here the agent wrote the application, and was given a correct description and told to write it in the application, and by mistake did not do it.

In Rowley v. Empire Ins. Co., 36 N. Y. 550, the court of appeals say: “ An agent, authorized to take applications for insurance, should be deemed to be acting within the scope of his authority, where he fills up the blank application of insurance ; and if, by his fault or negligence, it contains a material misstatement not authorized by the instructions of the party who signs it, the wrong should be imputed to the company, and not to the assured.” And this principle is the'settled law in the state of New York. See Baker v. Home Life Ins. Co., 64 N. Y. 648, 650; Pitney v. Glen’s Falls Ins. Co., 65 N. Y. 23; Mowry v. Rosendale, 74 N. Y. 363; Flynn v. Equitable Life Ins. Co., 78 N. Y. 577. Also in Insurance Co. v. Wilkinson, 13 'Wallace, 223, the supremo court of the United States say: “ lienee, when these agents, in soliciting insurance, undertake to prepare the application of the insured,” . . . . “ they will be regarded, in doing so, as the agents of the insurance companies, and not of the insured.” And this case is approved in Ins. Co. v. Mahone, 21 Wall. 152, and N. J. Mut. Life Ins. Co. v. Baker, 94 U. S. 610. In Massachusetts Life Ins. Co. v. Eshelman, 30 Ohio St. 647, the supreme court commission say: “A sub-agent of a life insurance company appointed to represent it in a particular branch of its business, becomes, in reference thereto, the direct representative of the company, and notice of a fact to him will operate as notice to the company, and it will be bound by acts done by him in respect to that branch of its business intrusted to him.”

As showing this to be the policy of our law, we now have a statute going much beyond this case, passed March 5,1879, and is now section 3644 of Rev. Stats, reading: A person who solicits insurance and procures the application therefor, shall be held to be the agent of the party hereafter issuing a policy upon such application or a renewal thereof, any thing in the application or policy to the contrary notwithstanding.”

The district court was fully justified in its decree and judgment, and in holding the insurance company to the correct facts of the application and the actual contract made.

Judgment affirmed.