author: Kennon, J.

text:
    *John Chapman v. Weimer and Steinbacher.
    A chattel mortgage, purporting to create a lien on the stock in a grocery, and also on such as should be subsequently acquired by the mortgagor, creates no lien on the subsequently acquired property.
    When such mortgage authorizes the mortgagee to take possession of the property secured and attempted to be secured, it is a continuing executory contract; and when the mortgagor acquires such property after the execution of the mortgage, and actually delivers the same to the mortgagee, the latter thereby acquires a valid lien on such subsequently acquired property.
    Petition in error, filed by leave in this court, to reverse a judgment of the district court of Summit county.
    The case is sufficiently stated in the opinion of the court.

      Wolcott & Upson, for plaintiff in error.
    I. There being no ground to question the entire good faith of Chapman, both in taking the mortgage, and the subsequent possession of the goods, the case is simply that of two inn'ocent creditors, each striving for priority over the other.
    II. The questions whether the mortgage was or was not void as to judgment creditors having levied before Chapman’s possession and prior purchasers, because of Marvin’s remaining in possession with implied power of sale, or whether the mortgage would or would not per se, cover after-acquired property, are wholly beside the case.
    III. Chapman’s right to the possession of the property in-controversy, rests not upon the mortgage alone or chiefly, but on that coupled with his subsequent possession, or it may stand firmly independent of the mortgage.
    IY. The following propositions, settled by an uniform current ■of authorities, and founded on principles which command universal acquiescence, establish Chapman’s right on grounds not to be shaken.
    *Y. Though a mortgage of chattels, where the mortgagor retains possession with power of sale, is void as against execution ■creditors and subsequent purchasers, yet it is good as between the parties. Collins v. Myers, 16 Ohio, 547; Brown v. Webb, 20 Ohio, 389, and the reports passim.

    VI. Whenever possession is taken under such mortgage from that time it becomes valid so as to protect the property from judgment creditors who have not levied, and subsequent purchasers. This precise point was settled in Brown v. Webb, 20 Ohio, 389.
    VII. A stipulation in a mortgage that future-acquired property shall be holden as security for the mortgage debt, is an executory agreement binding the parties, and under it the creditor may take the property into his possession, and hold it for his security when it is acquired by his debtor. Whenever the creditor does so take it into possession before it has been levied on or sold, he may ■under the executory agreement hold it against all persons. 13 Met. 33.
    VIII. The executory agreement of the owner in such case, is a continuing agreement, so that, when the creditor does take possession under it, he acts lawfully under the agreement, of one then having the disposing power, and this makes the lien good. Moody v. Wright, 13 Met. 33.
    IX. Even though the mortgage per se, might not cover subsequent additions to the stock, and though Chapman at the time claimed his right under the mortgage alone, yet if he took possession with Marvin’s consent, for the purpose of securing his debt, that would operate as a new pledge or mortgage effectual against all persons but prior purchasers and creditors with levy. Rowley v. Rice, 11 Met. 333.
    X. But Chapman’s right to the goods in question does not depend on the validity of the mortgage. If it be void, then Marvin, on December 18, 1852, had the absolute disposing power of the property against all persons. In the exercise of *this power he did, on that day, and before the rights of any creditors had attached, deliver them in good faith to Chapman, either by way (as the heading of the invoice would seem to imply) of absolute payment to the extent of their value of his indebtedness to Chapman, or to hold as security for the payment thereof. In the former case it is a sale, and of course is beyond question. In the latter case it is a pledge or hypothecation of the common law accompanied by possession, and is equally beyond question. 2 Kent Comm. 577; Story on Bail. 291; 5 Johns. 261; 24 Wend. 117; 2 Hill on Mort. 343, 344.
    In any aspect of the case Chapman’s right to the property and its possession would seem to be unimpeachable, and 'the judgment should be affirmed.

      Edward Oviatt, for defendants in error.
   Kennon, J.

Chapman, the plaintiff in error, brought an action of replevin against Weimer and Steinbacher, before a justice of the peace, for some goods of the value of about $90, and had a judgment in his favor. The case was appealed by the defendants to the court of common pleas, and then submitted to the court upon the facts, and judgment again rendered in favor of Chapman.

The defendants took the case, by petition in error, to the district court of Summit county, and the judgment of the common pleas was reversed and a new trial ordered. The present proceeding is a petition in error, filed in this court, for the purpose of reversing the judgment of the district court.

Upon the trial of the case in the common pleas, the court found in favor of Chapman, and a motion was made for a new trial which was overruled by that court, and judgment rendered. A bill of exceptions was tendered to the court and signed by the judge, from which it appears “ that Ira M. Trussell, being owner of a stock of groceries in 1852, sold them to Z. H. Marvin, for *$674.73; that of this sum, $500 was paid in cash to Trussell, and for the residue, of $174.73, Marvin gave his note, with Chapman as surety, payable in one year, with interest; that the cash payment was-made with money borrowed by Marvin from Chapman, the petitioner, and for which Marvin gave his note to Chapman, payable on demand; that on the 2d of October, 1852, Marvin (who was the stepson of Chapman) executed a chattle mortgage, or bill of sale, of his then stock of goods, with its future increase and additions, to' secure the payment of the $500 note, and to indemnify Chapman against his liability as surety on the note to Trussell.”

There was a clause in this mortgage authorizing Chapman to take-possession of the stock of goods and all he might thereafter have, whenever Chapman might see proper, and to sell and dispose of the same. This mortgage was duly filed the 5th of October, 1852.

On Friday, the 17th of October, 1852, Weimer and Steinbacher sold the property in controversy to Marvin, on credit, and delivered it to him the same day. The goods thus sold were of the value of ■about $90, and were by Marvin taken into his grocery.

On Saturday, the 18th of December, 1852, Chapman went into Marvin’s grocery and demanded of him payment of the $500 note to him. Marvin declared his inability to pay. Chapman then said to him that the business had not been going to suit him, and he would have to take charge of it himself. To which Marvin replied, “Very well, go ahead,” and turned round and left the grocery, and ■did not return until the next day. Chapman remained in the grocery, and, on the 19th commenced taking an invoice of the goods, Marvin being present and aiding in taking the invoice, which was not finished until Monday, December 20,1852. The particular goods in question were invoiced on the 19th of December. It does not appear that' Chapman had any knowledge of the purchase of the gooods from Weimer and Steinbacher, *until they were reached in taking the invoice on the 19th, the day after Chapman had taken possession.

On the 20th, and, as we understand the facts of the case, before •the invoice was fully completed, Marvin told Weimer and Steinbacher they might take the goods, and went before a justice of the peace and confessed judgment for the amount due, then being about $90, and they caused the goods to be levied on by a constable to satisfy their judgment; and Chapman afterward replevied these goods.

It was claimed before the court of common pleas by the defendants in error, that a new trial ought to be granted, upon the ground that the bill of sale, or chattel mortgage, gave to Chapman no lien on the goods, the title to which was acquired by Chapman after the execution of the mortgage; and that such mortgages are void, at least as against creditors and purchasers, so far as the subsequently acquired property is concerned.

This mortgage not only undertakes to convey to Chapman the goods then on hand, but all the goods that Marvin might thereafter acquire; and it authorizes Chapman at any time thereafter, when he might see proper to do so, to take possession of not only the goods then owned by Marvin, but those which he might subsequently own.

It may be safely said that Chapman did not, by the mere execution of this mortgage, acquire any legal title to, or lien on, such subsequently acquired property. But when, after the execution of the mortgage, and after the mortgagor had acquired title to property not owned by him, nor in his power to deliver, at the time of the execution of the mortgage, he does acquire the title and possession of such property, and actually delivers the same to the mortgagee, a very different question arises.

In the case of Moody v. Wright, 13 Met. 17, Justice Dewey, in treating this subject, says: A stipulation that future acquired property shall be holden as security for some present engagement, is an executory agreement of such a character that the creditor *with whom it is made may, under it, take the property into-his possession, when it comes into existence, and is the subject of transfer by bis debtor, and hold it for bis security; and whenever be does so take it into bis possession, before any attachment has been made of tbe same, or any alienation, such creditor, under bis executory agreement, may bold the samo; but until such an act be done by bim, be has no title to tbe same; and that such act being done, and tbe possession thus acquired (tbe executory agreement of tbe debtor authorizing it), it will then become bolden by virtue of a valid lien or pledge. Tbe executory agreement of tbe owner in such case is a continuing agreement, so that when the creditor does take possession under it, be acts lawfully, under tbe agreement of one having tbe disposing power; and this makes tbe lien good. If, however, before taking possession, or doing such acts as are necessary to give vitality to tbe mortgage, or to subsequently acquired projDerty, an attachment or assignment takes place, tbe opportunity for completing tbe lien is lost.”

Tbe judge delivering this opinion is speaking of a duly recorded mortgage of personal property, and clearly expresses tbe opinion that the mortgagee may himself take possession of the newly acquired property, and thereby acquire a valid lien under his mortgage, without having the property actually delivered to him by the mortgagor. It is not necessary in tbe case under consideration to carry tbe doctrine to that extent, for we think that tbe court of common pleas was well warranted, from the evidence in this case, in finding, that the property in controversy was actually delivered to the mortgagee by the mortgagor, and that he bad entire possession and control of tbe property before tbe invoice was completed or tbe levy-made. It is not like tbe case of a sale of property, where tbe amount and value has to be ascertained before tbe sale is complete,, .but is an agreement, a continuing executory agreement, to deliver tbe whole; and although tho mortgagor had a right to be present, for the purpose of making, or seeing made, tho inventory of the goods, yet, when *the mortgagee demanded the goods in thcgroccry, and the mortgagor, in pursuance of tho stipulation in tho agreement, said to him, “Very well, go ahead,” and left the grocery, he in substance said take possession, and it amounted to an actual delivery, as the mortgagee did then take possession.

We are aware that Marvin states, in his deposition, that he considered he had still a right to give the goods to the defendants; but this was nothing more than the expression of an opinion, in which, we think, he mistook his rights.

It is claimed, however, that Chapman obtained the possession of these goods by force from Marvin, and that he knew that Marvin had hut lately acquired title to them and had not paid the defendants. This may he all true, hut there is very little if any evidence tending to establish any such facts, and we can not say, therefore, that the court of common pleas erred in not granting a new trial for such reasons.

Upon the whole, therefore, we think the common pleas did not err in refusing to grant a new trial, and that the district court did err in reversing the judgment of the common pleas.

The judgment of the district court is therefore reversed, with costs, and the judgment of the common pleas affirmed.


source: Caselaw Access Project

author: Ranney, J.

license: Public Domain

text:
    Woodworth v. The State.
    An information founded upon section 1 of the act to prevent the adulteration of alcoholic liquors (Swan’s Rev. Stat. 479a), must contain the general allegation, that the liquors sold were not inspected.
    It is not sufficient to aver that they were not inspected in the county where sold, and that the cask containing them did not have the inspector’s brand of any other county.
    Error to the probate court of Ashtabula county.
    *The fourth count of the information upon which the plairtiffi in error was convicted, was as follows:
    And the prosecuting attorney aforesaid, in the name and by the authority of the State of Ohio, further gives said court to understand and be informed that said Elijah Woodworth, late of the township of Conncaut in the county aforesaid, on the ninth day of June, in the year of our Lord, one thousand eight hundred and fifty-four, in the township of Conncaut, in the county aforesaid, did unlawfully sell to one Samuel Fox, spirituous and intoxicating liquors of the kind commonly called whisky, the same not having been then and there inspected by the inspector of alcoholic liquors within and for the said county of Ashtabula, and the same not having then and there the inspector’s brand of any other county in this state upon the cask containing the same, contrary, etc.

      Farmer & Sherman, for plaintiff in error.

      Attorney- General, for the State.
   Ranney, J.

We shall notice but one of the errors assigned, as that, in the opinion of the court, is fatal to the fourth count of the information, upon which the plaintiff in error was convicted. That count charges him with having sold spirituous and intoxicating liquors “ not having been inspected by the inspector of alcoholic liquors for Ashtabula county, and not having the inspector’s brand of any other county in this state upon the cask containing the same.”

The first section of the statute upon which the information is founded (Swan’s Rev. Stat. 479a), punishes, with fine and imprisonment, the selling or offering to sell, any spirituous or intoxicating liquors, not inspected as hereinafter provided.” The second section makes it the duty of the inspector to inspect all alcoholic liquors imported into or manufactured in the county, unless they have the inspector’s brand of some other county, *whieh is made evidence of the purity of the article. The first section defines the offense, and the second simply prescribes the duties of the inspector. The law contemplates the inspection of the article upon its importation into any county, or when it is manufactured, and before it is offered for sale. It was never intended to compel a second inspection, when the bulk was broken, and it was sold in one county and taken to another. A single inspection is all that is required, and it is entirely immaterial in what county it is made. It should, therefore, be averred that it was not inspected; and not simply, that it was not inspected in the county where it is sold, and that the cask -from which it was taken did not have the inspector’s brand of any other county. It is entirely consistent with such an averment, that the liquor may have been inspected in another county, into which it was imported or where it was manufactured, and was there taken from a cask properly branded and put into another, which was carried by the accused into Ashtabula county, and the liquor there sold. In such case, no crime would have been committed, and yet the information does not negative the existence of such a state of facts.

The judgment must be reversed. _


author: Thurman, C. J.,

text:
    Johnes v. The Auditor of State.
    Mandamus. Leave given to amend the writ of mandamus in ten -days, and to answer the amended writ in ten days thereafter.
   Thurman, C. J.,

remarked upon granting the above leave, that ho would state for the information of the bar generally, that it must not be expected that the clerk of the court would draft writs of mandamus. By the express provisions of the code, the writ and the answer thereto are pleadings, and the only pleadings *in the ease. The petition, or motion, upon which the writ issues, is no-part of the pleadings. The writ must therefore, be sufficient in itself to show precisely what is claimed and the facts upon which the claim is made. To draft such a writ generally requires time and legal skill, and also a knowledge of the case which the clerk can not be required to obtain. Counsel must therefore prepare such writs- and submit them to the court before they are issued, in order that, it may be seen that they correspond with the order of allowance.


author: Thurman, C. J.

text:
    The Schooner Marinda v. Thomas Dowlin.
    A petition in error can not be sustained unless filed within three years after the rendition of the judgment sought to be reversed, except in a case of disability specified in section 523 of the code, and this is equally so in respect to judgments rendered before the code took effect as in respect to those rendered afterward.
    A petition filed after the lapse of three years, when there was no such disability, will be stricken from the docket.
    At the February term, 1850, of the Superior Court of Cleveland, 'Thomas Dowlin recovered a judgment against the schooner Marinda. To obtain a reversal of this judgment the schooner filed a petition in error in the Supreme Court, at December term, 1854. Dowlin now moves that the petition be dismissed, because *it \was filed more than three years after the rendition of the judgment.

      Willson, Wade & Wade, for the Marinda.

      Willey & Carey, for Dowlin.
   Thurman, C. J.

"Under the practice act of 1831, a judgment could be reviewed on a writ of error sued out within five years after its rendition. But this act was repealed by section 606 of the code, with no other saving than of actions, suits, or writs, pending when the code took effect, and by section 530, writs of error in civil cases are expressly abolished. See Code, sections 530, 602, 606, and 610. By section 515 a petition in error is given, and by section 602 it is declared that “ the provisions of this code shall apply after a judgment, order or decree heretofore or hereafter rendered, to the proceedings to enforce, vacate, modify or reverse it, except as provided in section five hundred and thirty-three.” Section 533 relates to chancery proceedings only. One of the provisions above referred to is found in section 523 which declares that no proceeding for reversing, vacating, or modifying judgments or final orders shall be commenced unless within three years after the rendition of the judgment, or making of the final order complained of; or, in case the person entitled to such proceeding be an infant, a married woman, or person of unsound mind, or imprisoned, within three years as aforesaid, exclusive of the time of such disability.” The language of these sections is too explicit to leave room for doubt, and a court can not do otherwise than follow its natural import. It is plain, that except in a case of disability as aforesaid, a petition in error can not be sustained unless filed within three years after the rendition of the judgment sought to be reversed, whether it was rendered before or after the code took effect. In coming to this conclusion we have not overlooked the savings in sections 6 and 8, but they do not touch *the present question. A right to institute a proceeding in error is rather a right of appeal than a right of action, and it was perfectly competent for the legislature to curtail it as they have done.

The leave given to file this petition was improvident and must be rescinded and the cause be stricken from the docket.


text:
    *Alexander McLaughlin v. James McLaughlin.
    The courts of probate in this state, by section 2 of the act of March 15,1853, defining their jurisdiction and regulating their practice, were invested with power, upon final settlement with the administrator of an intestate estate, to order distribution of the money remaining in his hands to the persons entitled thereto.
    There exists no constitutional impediment to conferring such power upon that court.
    In the exercise of this jurisdiction, the court is authorized to determine every disputed question of fact (or, in its discretion, to cause the same to be de termined by the verdict of a jury) which may be necessary to ascertain the amount justly due from the administrator to such distributees.
    Such order of distribution has so far the force and effect of a judgment that it may be enforced by execution.
    The powers of the court are exhausted when the order of distribution is made; and it has no jurisdiction to entertain a petition brought to enforce the collection of the amount awarded to the distributee as a debt against the administrator.
    Error to the probate court of Columbiana county.
    The case is stated in the opinion of the court.

      W. K. Upham, for plaintiff in error:
    The probate court is of special and limited jurisdiction ; it has no original common-law jurisdiction, no more than it has original chancery jurisdiction. Gilliland v. Adm'rs of Sellers, 2 Ohio St. 223.
    The proceedings before the probate court, filing the petition and answer, and the trial by jury, were clearly irregular.
    The court of common pleas was the proper tribunal, to which the defendant in error should have resorted. Suits in the courts of common pleas, in assumpsit (Negby v. Gard and wife, 20 Ohio, 310), on the bond (Ohio Rep. passim), have always *been maintained in favor of a legatee or distributee of a decedent; resort also has been had to chancery. 6 Ohio, 429.
    The proper course for the defendant in error, either under1 the old or new law, was and is by citation and proper notice.
    The proceedings before the probate court were null and void.

      Wm. _D. Ewing, for defendant in error, presented an argument of which the following are the propositions:

      I. The probate court had “ exclusive jurisdiction to direct and control the conduct and settle the accounts of executors and administrators,” and to enforce the payment of the debts and legacies of deceased persons, and the distribution of the estates of intestates. 51 Ohio Stat. 167.
    II. The probate judge had power to order any question arising before him in the above duty, in his discretion, to be tried by a jury. In this case he exercised that discretion by trying the case by a jury, and the exorcise of discretionary powers is not a thing subject to be corrected, even if erroneously exercised.
    III. Even if in the mode of the trial or calling the jury there were irregularity, no injustice having been done, and the case being within the jurisdiction of the probate court, this court will not reverse the proceedings, either in the whole or in part.
   Ranney, J.

The plaintiff in error was appointed administrator of the estate of Margaret McLaughlin, as early as April, 1843. A final account was filed in the probate court, in 1852; which, after being referred to, and reported upon, by a master, was settled by the court in September of that year. The principal exception taken to the account, related to a release of all the interest of the defendant in error in the estate of Margaret McLaughlin, dated on the 8th of November, 1844; which the administator presented as a voucher, and claimed to be credited with the payment of the share of the defendant, in the estate. At the time it was executed, the plaintiff in error was also the ^administrator upon the estate of Catharine McLaughlin; from which, in 1847, he received as the administrator of Margaret over four thousand dollars.

It was claimed that a note at the foot of this release, stating that the paper had “ no ” reference to the estate of Catharine McLaughlin had been fraudulently altered, so as to make it read that the release had “ a ” reference to that estate. The master did not determine this question; but being of opinion that the release was not, within the meaning of the statute, a proper voucher for the payment of the share of James McLaughlin as an heir to the estate, he disallowed it, and found due to said James the sum of $1,011. This report was approved and confirmed by the court, and the administrator was ordered to distribute and pay over that amount according to law.

About one year thereafter, the said James filed in the probate court an original petition, setting up the amount found due him, and the order of distribution; averring the alteration of the release, and praying for a judgment for the amount with interest, less the sum actually received by him when the release was executed. The administrator answered the petition, denying the- alteration of the release; and this issue being submitted to a jury, a verdict was returned finding the release altered as charged in the petition,, and assessing the damages of the petitioner at $838.56, upon which the court rendered a judgment for that amount. This petition is filed to reverse that judgment; and the error assigned is, that the court had no jurisdiction to entertain this last proceeding.

The question depends upon the act of March 14,1853, “ defining the jurisdiction and regulating the practice of probate courts.” 51 Ohio Stat. 167. By section 2 of that act it is provided that the probate court shall 'have exclusive jurisdiction “ to enforce the payment of the debts and legacies of deceased persons, and the distribution of the estates of intestates.”

This is the only provision of the act, having any relation to this *case, conferring jurisdiction upon that court. Its language is too explicit to admit of doubt as to what was intended. The legislature manifestly intended to invest the court with authority to compel executors and administrators to pay over to the persons entitled the proceeds of all the property which might come into their hands to be administered, whether such persons might be creditors, legatees, or distributees. Creditors have the first lien upon the fund; and when their claims were ascertained and liquidated by allowance, judgment, or award, it became the duty of the court to compel an application of the assets to their satisfaction. When these were paid, whatever might remain would belong to legatees or distributees ; and the same full authority was given to enforce the payment of their claims upon the estate. The act did not extend so far as to permit the executor or administrator to sue in that court for a debt due to the estate, or to subject him to be sued there for a debt disputed by him; but when the funds were in his hands, and the creditors were ascertained, and their debts liquidated, it conferred full power upon the court to compel him to do his whole duty in disbursing the fund, as well to legatees and distributees as to creditors.

These powers may have been injudiciously large; and the inference is very strong that they were thought to be by the legislature, from the fact that the section was repealed by the amendatory act of May 1,1854, and re-enacted with no other change than that of substituting for the clause above quoted, the power to order the distribution of estates.”

This case does not call for a construction of the amendatory act, but the conclusion is irresistible, that some change was intended; and as the specific power to enforce the payment of debts, legacies, and distributive shares is omitted, it may not unreasonably be supposed that, in the opinion of the general assembly, the determination of the difficult questions of law and fact often involved in the settlement of the rights of legatees and distributees, ought not longer to remain with that court; and that the *order of distribution here referred to, should be a general direction to the administrator or executor to disburse the amount remaining in his hands, after a final settlement of his account, and to be used as a foundation for his liability, when sued elsewhere, rather than a specific ascertainment of the amount due to each legatee or distributee, and its enforcement by execution. ' But however this may be, we can not doubt that these powers were conferred by the act of 1853; and we know of no constitutional objection to the act in this particular.

Whether these powei’s fell within the specific description of probate jurisdiction, as defined by section 8, of article 4, of the constitution, or not, is wholly immaterial; as the same section authorizes that court to exercise such other jurisdiction as may be provided by law.” That act provided all the necessary means for the full and efficient exercise of this jurisdiction. By section 28, the judge was empowered to determine every disputed question of fact which it might be necessary to settle before making the necessary order, or, in his discretion, to cause the same to be determined by a jury, or referred; while section 15 provides for enforcing all his orders for the payment of money by execution, “ in the same manner as judgments in the courts of common pleas.”

We are therefore brought to the conclusion, that the court had jurisdiction, not only to settle the accounts of executors and administrators, but also to determine the amount due to each legatee or distributee, and to order the payment thereof; and — without undertaking to determine whether such order would, in every respect, be conclusive — that it had so far the force and effect of a judgment, that it might be enforced by execution. But the powers of the court were exhausted when the order of distribution was made, and it had no jurisdiction to entertain an original petition, brought to enforce the collection of the amount awarded to the distributee, as a debt against the administrator. The power to make the original order, was derived from the ^jurisdiction already acquired over the administrator, for the purpose of settling the estate, and from the authority given to compel a full settlement, by enforcing the payment of all the moneys that had come to his hands. When the order was made, the distributee had his election — to enforce it by execution or to treat it as a debt of record against the administrator, and sue for and collect it under another proceeding. But the probate court had no power to entertain such a proceeding. Its jurisdiction over the administrator having terminated when the final order was made, it had no jurisdiction to call upon him again to answer in that court. It erred in attempting it, and for that cause its judgment must be reversed.


text:
    Jacob Stober, Administrator of John Stober, deceased, v. Jacob McCarter.
    In an action against an administrator for work and labor performed for the intestate, the widow of the intestate is a competent witness, at the common law, for the plaintiff, to prove the performance of such work and labor, where her testimony is not a disclosure of her husband’s conversations or admissions; nor of matters, the knowledge of which was acquired by her in conjugal confidence; nor of matters prejudicial to her husband’s reputation.
    In error to the district court of Ashland county.
    March 19, 1853, McCarter brought an action of assumpsit against Jacob Stober, as administrator of John Stober, deceased, to recover the price of work done for, and goods sold to, the intestate.
    Upon the trial, July, 1854, in the district court (to which the cause had been appealed), upon the issue of non-assumpsit, a bill of exceptions was taken, which is as follows:
    *“ Be it remembered, that on the trial of this cause in said court, at the July term thereof, A. D. 1854, the said plaintiff (McCarter), to maintain the issue on his part, caused Catharine Stober to be sworn as a witness for him in said cause, who, before giving other testimony, swore on her voir dire, that she was the widow of said John Stobor, deceased; and thereupon said defendant (Jacob Stober, adm’r), objected to said Catharine Stober being examined as a witness, or giving further testimony to any thing then involved in the issue in this cause, which took place or transpired during the existence of the marriage relation between her and said John Stober; which objection was overruled by the court, and said Catharine Stober permitted to give her evidence, on the trial aforesaid, as a witness for the plaintiff; and then and there, in answer to the plaintiffs interrogatories, the said Catharine Stober testified that after her marriage with said John Stober, and while he and she were husband and wife,'the said plaintiff, Jacob McCarter, performed work and labor for said John Stober in his lifetime, at sundry times during the last thirteen years next before the death of said John Stober, who died in January, a. d. 1851; that, during the time aforesaid, the said plaintiff worked at harvesting, attending sawmill, repairing barn and all kinds of work, for said John Stober. To all which testimony of said Catharine Stober, the said defendant objected, which objection was overruled by the court, and the testimony permitted to go to the jury; to which ruling of the court, in permitting said Catharine Stober to testify as a witness as aforesaid, and in allowing her said testimony to go to the jury as aforesaid, said defendant excepted,” etc.
    A verdict and judgment were rendered in favor of McCarter, whereupon this petition was filed praying for a reversal of the judgment, upon the ground that the court erred in holding that Catharine Stober was a competent witness, and in permitting her to testify as aforesaid.

      Given & Jeffries, and Kinney & Porter, for plaintiff in error:
    This cause was brought under the old procedure.

      We assume that, where a suit is brought against an administrator for services, etc., done for the intestate in his lifetime, the widow oí such intestate is incompetent, as a witness for the plaintiff, to testify to anything involved in the suit which occurred during the marriage relation between her and the deceased; and rely on 1 Greenl. Ev. 444, and 18 Ohio, 526.

      Fulton & McCombs, for defendant in error:
    The “ act to improve the law of evidence,” as passed by our legislature, is substantially a re-enactment of Lord Denman's act (6 & 7 Yict. c. 85), with the exception that -the proviso of Lord Den-man’s act is omitted in our act. That proviso reirders the husband and wife incompetent to testify for or against each other.
    The third section of the “ act to improve the law of evidence” (3 Curw. Stat. 1522) provides, that “ no person offered as a witness shall be excluded by reason of his or her interest in the event of the action,” etc.
    If it was necessary to insert the proviso in Lord Denman’s act to render the wife incompetent, is she not clearly competent under our statute without the proviso ? She is cloarly competent under the 3d section, The English act, with the decisions of their courts under it, will be found in 9 West. Law Journal, 326.
    The bill of exceptions discloses no privileged communication between the deceased and the witness, Catharine Stober. She could not, therefore, on this ground be excluded.
    The evidence, as disclosed by the bill of exceptions, also shows that the testimony of the witness was wholly against her own interest, and of such character that it came only to her knowledge by means equally accessible to any person not standing in that relation ; that it was not confided to her by the husband.
    The plaintiff in error relies upon the case of Cook v. Grange, 18 Ohio, 526; 1 Greenl. Ev., sec. 254, etc., etc.
    *If the widow of the deceased would be incompetent, according to the rule of the common law, that incompetency is removed by the act referred to.
    The case in 18 Ohio was determined at the December term, A. D. 1849, and before the “ act to improve the law -of evidence " was passed and took effect. It can not, therefore, apply to the ease at bar.
   Thurman, C. J.

Catharine Stober was not a party to the action, nor was she incompetent as a witness, on the ground of interest. She was called by the party to whom her interest, if she had any, was adverse; but had she been called by the administrator, her interest would not have disqualified her. See “ act to improve the law of evidence,” 2 Curw. 1522, sec. 3; Butt v. Butt’s Adm’r., 1 Ohio St. 222; Hart v. Stephens, 6 Adol. & Ell. N. S. 937; S. C. 51 Eng. Com. Law. 937 ; 9 West. Law Journal, 328.

If, therefore, she was incompetent, her disqualification arose from considerations of public policy, unconnected with interest. It is well known that the rule that forbids husband and wife to testify for or against each other, or where either is interested, is not limited to the duration of the marital relation, but for excellent reasons, whose importance can hardly be overestimated, continues beyond it. 1 G-reenl. Ev., sec. 337. But whether the rule does not undergo some modification upon the dissolution of the marriage, is a question upon which the language of judges is scarcely reconcilable. This is owing not so much, or at least not so often, to any real difference of ojfinion, as to a somewhat incautious generality of expression, and to the additional fact that, by some courts, the question of competency has been treated as one of interest merely, while, by others, an enlarged and philosophical view of it has been taken.

One of the earliest, and a leading case on this subject, is Munroe v. Twisleton, Peake’s Ev. App. 87. It was an ^action of “ assumpsit, for the board and lodging of an infant child of the defendant. To prove the contract, the plaintiff called Mrs. Sandon, who at the time of making it was the wife of the defendant, but had since been divorced from him by act of parliament, and was married again.” She was objected to, and the objection sustained. Lord Alvanley said:

“ To prove any fact arising after the divorce, this lady is a competent witness, but not to prove a contract or anything else which happened during the coverture. She was at that time bound to secrecy; what she did might be in consequence of the trust and confidence reposed in her by her husband, and miserable, indeed, would the condition of a husband be, if, when a woman is divorced from him, perhaps for her own misconduct, all the occurrences of his life, intrusted to her while the most perfect and unbounded confidence existed between them, should be divulged in a court of justice. If she might be a witness in a civil proceeding, she might equally be so in a criminal prosecution; and it never shall be endured, that the confidence which the law has created, while the parties remained in the most intimate of all relations, shall be broken whenever, by the misconduct of one party — for misconduct alone can have that effect — the relation has been dissolved.”

It is obvious that these remarks to cases where the witnesses have been divorced, and not to those in which death has sundered the marriage relation. The latter case was not before the court, and the manifest scope of the opinion and the tenor of the last sentence especially, would seem to indicate that it was not in the judge’s mind.

In Aveson v. Lord Kinnaird, 6 East, 192, upon the case of Monroe v. Twisleton being cited, Lord Ellenborough observed: “That, goes on the ground that the confidence which subsisted between them at the time shall not be violated in consequence of any future-separation. I doubt whether what Lord Alvanley there said was-meant by him to be applied to the circumstances *of that case; for it is generally considered that matters of domestic concern are intrusted to the wife. I rather consider him to have mentioned it. as a general doctrine, that trust and confidence between man and wife shall not be betrayed, and as such it is sound doctrine.”

This limitation has been frequently approved since it was suggested by Lord Ellenborough, and a distinction has also been made-between cases in which the marriage contract was dissolved by a divorce and those in which it was terminated by death.

Thus, in Beveridge v. Minter’s Executors, 1 Car. & P. 364; 11 Eng. Com. Law, 421 — which was an action upon an alleged promise of the testator to pay £150 to the plaintiff — the widow of the testator was held to be a competent witness for the plaintiff to prove the-promise. As no suggestion is found in the report that her testimony would violate any confidence reposed in her, it is presumable that such was not the ease.

Doker, executor of Doker, v. Hasler, sheriff of Sussex, Ryan & Moody, 198; 21 Eng. Com. Law, 416, was an action for a false return to a,fi.fa. “ The defense was that the execution was fraudulently taken out in order to protect the goods of the debtor against his assignees, under a commission of bankruptcy. In order to-prove this, the widow of the testator was called and asked to a conversation-between herself and the testator. This was objected to on the authority of Monroe v. Twisleton.”

Best, C. J., said: “ I remember that in that case, in which I was counsel, Lord Alvanley refused to allow a woman, after a divorce^ to speak to conversations which had passed between herself and her husband during the existence of the marriage. I am satisfied with the propriety of that decision, and I think that the happiness of the state that the confidence between man and wife should he kept forever inviolable. The point is of very great importance, and I will reject the evidence, in order that the question may receive a solemn discussion in case my present opinion should be thought unfounded.”

*A further consideration was rendered unnecessary by a verdict for the defendant, but had the question been again discussed, there is little, if any, reason to suppose that the ruling would have been changed. For surely the presumption was that if the husband disclosed to his wife a fraud he designed to perpetrate, he did so in confidence; a presumption not subject perhaps to disproof; but whether so or not, there was no offer -to disprove it. Again, the testimony tended to injure his reputation to a very serious degree, an objection which, of itself, has been held to be sufficient.

In Coffin v. Jones, 13 Pick. 445, Wilde, J., speaking of the cases upon this subject, said: “ They only decide that a widow is not allowed to disclose conversations between her and her husband, but not that she is incompetent to testify as to other matters.”

Of the same opinion was the Supreme Court of Vermont, in Williams v. Baldwin, 7 Vt. 506; where, after a reference to the general rule of exclusion, it is said: “ This rule is too important to the peace and confidence of married life to be disturbed, but we think it was not applicable in the present instance. The witness was not called to disclose communications made by her late husband, but to state independent and distinct facts; the possession by him of the plaintiff’s letters, as ascertained from inspection by the witness herself.”

In Edgell v. Burnett & Lowell, 7 Vt. 534, a widow was permitted to testify to declarations made by her late husband during the coverture ; but it was also held that the testimony would not be admissible if offered “ to contradict and impeach the testimony which he gave,on a former trial between the parties.”

Ratcliff v. Wales, 1 Hill, 63, was an action for crim. con. with the plaintiff’s wife. After a divorce, a vinculo, he offered her as a witness to jmove the adultery. She was permitted to testify, and the ruling approved on a motion for a new trial. *The court .said, inter, alia: “ For the purpose' of promoting a perfect union of interests, and securing perfect confidence between husband and wife, the courts have generally refused to admit the wife as a witness against the husband, even after the' marriage contract was at an end, when she was called to speak of matter which during the continuance of the marriage, and which might affect the husband either in his pecuniary interest or character. But in the case at bar, the witness was not called against her former husband, nor was she asked to betray any confidence which he had reposed in her during the coverture. The fact which she was offered to prove, did not even come to her knowledge in consequence of the marriage relation.”

This decision was approved and followed, by the Supreme Court ■of Massachusetts, in the case of Dickerman v. Graves, 6 Cush. 308.

In Cook v. Grange, 18 Ohio, 526, it was held, that a woman who has been divorced, is not a competent witness against her late husbaud, to prove a contract made by him during the coverture; and the judge who delivered the opinion went quite as far as did Lord Alvanley in Monroe v. Twisleton. Ho repudiated a distinction, so far as that case was concerned, between confidential communications and those not confidential, and between conversations and other independent facts, and laid down the rule broadly that the divorced witness was incompetent to testify to any fact which could not have been proved by her when it occurred. But he said nothing as to the rule in cases where the dissolution of the marital relation was occasioned by death.

Barnes v. Carnack, 1 Barb. 392, is to the same effect as Cook v. Grange, and goes fully as far. It also was a case of a divorced witness, and the very strong and general language of the judge should, I suppose, be restricted accordingly. It is not probable that he meant it to apply, in its full extent, to the case of a widow offered as a witness.

McGuire v. Maloney, 1 Ben Monroe, 224, *“was an action of trover, brought by John Maloney against McGuire, who, as administrator of John Maloney, Sr., the plaintiff’s father, had sold divers goods and chattels, as belonging to the estate of the decedent, but which the plaintiff claimed to have been his property, under an instrument of writing purporting to have been executed by his father and himself, in the presence of two subscribing witnesses, and to transfer to him the property in question. To prove the execution of this instrument, the plaintiff introduced his mother, tne widow of John Maloney, Sr., who stated, in substance, that the two subscribing witnesses were both dead; that she saw her husband write the instrument and sign the names of himself and the plaintiff^ and also of the subscribing witnesses, whom she also saw make their marks; that she heard the two Maloneys make-the agreement and acknowledge it, and that her husband handed' the instrument to her at its date, and she had kept it ever since,, whereupon, the instrument was handed to the jury. The defend • ant objected to the competency of the witness when she was offered,, and afterward moved to exclude her testimony and the instrument from the jury.” The circuit court overruled the objection and motion, and the plaintiff obtaining a verdict and judgment, the defendant appealed. The court of appeals affirmed the judgment, and stated the rule to be as follows :

The law will not permit, even after the death of the husband, any disclosure by the wife which seems to violate the confidence-reposed in her as a wife, lost such jtermission might tend to impair the harmony of the marriage state, and to affect, injuriously, the interests of society dependent upon it.

“ But where there is not even a seeming confidence — when the-act done or declaration made by the husband, so far from being private or confidential, is designedly public at the time, and from its nature must have been intended to be afterward public — there is no interest of the marriage relation or of society, which, in the absence of all interest in the husband or wife, requires the latter *to be precluded from testifying between other parties, such act or declaration not affecting the character or person of the husband.”

In Caldwell v. Stuart’s Ex’r, 2 Bailey, 574, it was held that “the-wife is a competent witness, in an action against the executor of her husband, to prove a parol gift by the husband in his lifetime. The dissolution of the marriage by death removes the objection arising out of the conjugal relation.” After stating the general rule of exclusion in respect to husband and wife, Johnson, J., delivering the opinion of the court, proceeded as follows:

“ In the ease of Monroe v. Twisleton, the rule is, I think, with great propriety, extended to a wife who had been divorced a vinculo matrimonii. The sacredness of the confidence existing in the relation of husband and wife, ought never to be violated, unless for the-most imperious necessity. But neither the rule, nor any of the reasons upon which it proceeds, have any — the most remote — application here. The husband is no party; he has ceased to have any interest in temporal concerns. The defendant, the executor, represents the interests of the creditors, legatees, or distributees, as the ease may be, and not the husband’s. There is no danger of matrimonial discord, nor is there any violation of confidence. She has only disclosed what the husband intended should be known. Without it, his intention in making the gift would have boon defeated.”

In Robin et al. v. King, 2 Leigh, 140, it was held that a widow was not a competent witness, in a suit 'for freedom against a purchaser from her late husband, to prove that before the sale, in the presence of his family, and without any injunction of secrecy, her husband had declared that the mother of the plaintiff was an Indian woman. The court were of the opinion that, although there was no injunction of secrecy, the husband could not have intended that his admission that he was unlawfully holding the woman and’ her children in slavery — as was the case if she was an Indian — should be made public; and, consequently, the disclosure must have been ■confidential.

*In Gaskill v. King, 12 Iredell, 211, it was held that ■after the death of a husband, the wife is a competent witness .against his administrator, to prove the execution of a deed made by the intestate in favor of a third person.

And in Pike v. Hays, 14 N. H. 22, the court said: There is no reason why the wife, after the death of her husband, should not state facts which came to her knowledge from other sources, and not by means of her situation as a wife.”

See, also, in support of the competency of a widow, Wells v. Tucker, 3 Binney, 366; Cornell v. Vanartsdalen, 4 Barr, 364, and 1 Greenl. Ev., sec. 338, where the result of the authorities is thus stated:

“ This rule, in its spirit and extent, is analogous to that which excludes confidential communications made by a client to his attorney, and which has been already considered. Accordingly, the wife, after the death of the husband, has been held competent to prove facts coming to her knowledge from other sources, and not by means of her situation as a wife, notwithstanding they related to the transactions of her husband.”

Prom this review of the authorities, it is quite apparent that the ease of Cook v. Grange does not sustain the plaintiff in error; for whatever may be the true doctrine in respect to divorced witnesses, there would seem to be no reasonable doubt, at this day, that a if not a witness to conversations with her husband, is competent to prove other independent facts that occurred during the coverture, the statement of which by her violates no confidence, nor is in anywise prejudicial to his reputation. Whether her competency, by the common law, goes beyond this and extends to conversations not confidential, it is unnecessary for us to say, for that question is not before us. Catharine Stober testified to no conversations at all, nor to anything the knowledge of which was derived through conjugal confidence, nor to anything prejudical to the reputation of her deceased husband. The acts proved by her were not the acts of *her husband, but of the plaintiff, McCarter; they were not private or confidential doings, but were open and public; not things of which she alone could have a knowledge, but facts open to the observation of every one. We think that she was a competent witness to jorove them, and that her testimony was properly admitted; and in thus holding, we do not mean to question, much less to overturn, the authority of Cook v. Grange.

The code has no application to this case, which was pending when that statute took effect, but it may not be inappropriate to refer to its provision upon this subject, which was possibly intended as a mere affirmation of the common law. If that was the design, it obviously strengthens the conclusion at which we have arrived, for its language is as follows: “Husband and wife [shall be incompetent to testify] for or against each other, or concerning any communication made by one to the other during the marriage, whether called as a witness while that relation subsisted, or afterward.” Code, sec. 314.

Judgment affirmed.


text:
    *James G. Case v. George Wresler, Treasurer of Scott Township, Brown County.
    •The board of education of a township, acting upon the supposition that the local directors of a subdistrict were neglecting to discharge their duties, assumed the exercise of those duties, under the provisions of section 13 of the school law, and employed a teacher for said subdistrict; who, under that retainer, and without being notified by the local directors to desist, taught the school in said subdistrict for three months, and at the expiration thereof received from the clerk of the board of education an order upon the township treasurer for his wages, pursuant to section 24 of said act. Held — •
    ¡That the treasurer could not rightfully withhold payment of said order, upon the ground that the local directors had not been neglectful of their duties, and that the exercise thereof, by the board of education, was unwarranted-by the facts of the case.
    Mandamus.
    The facts sufficiently appear in the opinion of the court.

      King, Smith & Wheeler, for plaintiff.

      William Wall, for defendant.
   Thurman, C. J.

An alternative writ of mandamus was issued in this case, commanding the defendant to pay to the plaintiff $35.69, for services rendered by him as a teacher of a common school in sub-district No. 1, Scott township, Brown county, as ordered by the-board of education of the township, or to show cause why he refuses to do so.

To this writ the defendant has answered; and the cause is submitted to us for decision upon the writ, answer, and the order of the board of education, directing the payment of the money, which is the only evidence offered in the case.

As the order, with the admission of the defendant that he has refused, and yet refuses to pay it, although when it was presented ^he had sufficient funds to do so, makes a prima facie case for the plaintiff, to rebut which the defendant has offered no proof whatever, it follows that a peremptory writ must be awarded; for the onus probandi in relation to the matters of justification set up in the answer, rests upon the defendant.

But, inasmuch as the case has been argued as if the allegations of' the answer were true, it may be proper to say, that were they proved, the result would be the same.

The material facts as alleged, when briefly stated, are as follows: The board of education — acting upon a real or pretended supposition that the local directors of the subdistrict were neglecting to discharge their duties — assumed the exercise of those duties, under the provisions of section 13 of the school law (Swan’s new Stab 839), and employed the plaintiff to teach a schoolin the subdistrict; which he did for three months, without being notified by the local directors to desist. At. the expiration of that time the board of education gave him the above-mentioned order on the defendant for his wages, pursuant to section 24 of the act. The local directors-notified the defendant not to pay it, and threatened him with a suit if he did, whereupon ho refused to pay it. The ground of the notification was, that the local directors had not neglected their duties, and that, therefore, the board of education had- unlawfully usurped their authority.

Assuming that the elaborate history set forth in the answer is-true, it is by no means certain that the board of education was justified in superseding the directors; while it is very apparent that the defendant has not been actuated by any bad motive.

But is this enough ? Must the plaintiff be a sufferer from the dissensions of these officials, of which it nowhere appears that he had any notice until payment of his wages was refused? Wo do not think so. It may well be admitted, that to be entitled to payment for services rendered, the retainer must have been by competent authority; but here the retainer was by a board ^exercising de facto the powers of local directors, without any objection, made known to the plaintiff, against their so doing. Under such circumstances, we think he is entitled to payment of his order, and that he ought not to be turned around to sue the individuals composing the board.

This view of the ease makes it unnecessary to consider whether a treasurer would, in any case, be justified in looking behind the order drawn on him by the board of education.

Peremptory mandamus awarded.


text:
    *Seth A. Abbey v. Oliver C. Searls and Lorenzo J. Rider.
    Proceedings for a trial of right of property, resulting in an order of restitution and a return of the property, pursuant to the order, are no bar to an action by the claimant against the officer to recover damages for the seizure and detention of the property.

      Motion by Abbey, for leave to file a petition in error, to review •a judgment recovered against him by Searls & Rider, in the district -court of Cuyahoga county.

      S. B. Prentiss and &. JH. Serrick, in support of the motion:
    “ Where a stranger to an execution, who claims property taken on the execution, elects to try the right of property before a justice of the peace under the statute — after such disposition of cause, the officer taking the property is not liable in another action at the suit -of the claimant.” Swan’s Rev. Stat. 616; Patty v. Mansfield, 8 Ohio, 369.
   Thurman, C. J.

Abbey, sheriff of Cuyahoga county, under color of an order of attachment against the property of one Harris B. George, seized certain goods in the possession of Searls & Rider, and detained them until an order of restitution was made by a justice of the peace, upon a trial Of the right of property instituted by S. & R., pursuant to the statute. After the restitution, S. & R. brought a civil action against Abbey, to recover damages for the .seizure and detention. The district court held that the proceedings .before the justice did not bar the action; the plaintiff recovered a judgment. To reverse this judgment the present petition is exhibited, and leave is asked to file it. The sole ground of the petition is the ruling above mentioned.

In Patty v. Mansfield, 8 Ohio, 369, it was held that if the ^verdict and judgment upon a trial of right of property, are against the claimant, he can not afterward bring and maintain an action against the officer for the seizure or detention of the property, but that his rights, as against any other person, are not affected thereby. The ground of the decision was, that the principal object of the statute is to furnish protection to an officer making a mistake in the discharge of his duty; “an object that would not be effected, if, after a trial of the right of property and a decision against the claimant, the officer could still be subjected to an action at his suit.” For the claimant is not bound to have a trial of the right of property; and if he, nevertheless, see fit to have it, and fail to establish his right — thereby adding apparent strength to the claim of the creditor, that the property be held by the process — he ought not to be allowed, in a subsequent proceeding ¡against the officer, to show his right to it.

But this reasoning has no application -where the result of the-trial is in favor of the claimant. In such a case, no one has ever-doubted that he might replevy the property out of the hands of the officer, or bring trespass against him, if he refuse to redeliver it; and if so, why may he not have his action for the damages-sustained prior to a redelivery ? He would recover them in the action above supposed, where there was no redelivery, and why should a return of the property defeat such a recovery ? What bar is there to his right of action ? He has sustained a wrong, and he ought to have a remedy, otherwise manifest injustice is done. We see no reason to depart from the maxim of the law, that where there is a right there is a remedy to enforce it. Nor is there anything in Patty v. Mansfield, that requires us to do so in this case.

Motion overruled.


author: Ranney, J. Bronson, J.,

text:
    *Gishwiler et al. v. Dodez.
    ' In a proceeding upon habeas corpus, instituted by the father.of an infant child, against the mother, who is living in a state of separation, to obtain its custody, it is error to reject evidence offered by him, either in the first instance, or by way of reply to evidence of qualification on her part, to show her unfitness to have the custody of the child.
    In such a controversy for the custody of a child incapable of electing for itself, the order of the court should be made with a single reference to its best interests.
    Neither of the parents has any rights that can be made to conflict with the welfare of the child.
    Reserved in the district court of Wayne county.
    The cause originated by the issuing of a writ of habeas corpus from the probate court of Warren county, at the instance of Louis A. Dodez, who claimed the custody of Sophia Mary Dodez, his infant daughter. The defendants, here plaintiffs in error — Joseph Gishwiler, Sophia Gishwiler, and Sophia Dodez, mother of the child — resisted the application; and, upon hearing, the court found that the child was not unlawfully detained by the defendants, and ■ordered the custody of the child to be restored to them. Thereupon Louis A. Dodez filed a petition of error in the common pleas, alleging, as errors, that the court erred in rejecting the testimony by which the -relator offered to prove, in reply to respondents’ evidence, that the said respondents were, in many respects, unfit and unqualified to have the custody of said child ; that its mother, Sophia Dodez, was in the habit of frequently getting drunk; that she was profane and obscene in her language; that she was a notorious liar, and had already openly taught said infant to lie and swear, and to hate any deny its father and his parents; that she was idle and prodigal, of an angry, revengeful, and ungovernable disposition, and that said *child would be in danger of bodily harm if left with her; and that its proper education would be totally neglected, and the child trained to habits of idleness and vice by its ■said mother; and that the said Sophia Gishwiler, with whom said Sophia Dodez and child resided, was an ignorant, peevish and evil-disposed old woman, who followed necromancy and fortune-telling, with cards and other agencies, as a business, and that she taught the same to her own children, and all others within her control; and that she was dishonest, and taught her children to be so, and to utterly disregard their father’s authority; and that said child, if left within her control, would be in great danger of bodily harm, and of being trained by her to habits of vice and error; and that the said Joseph G-ishwiler, the husband of said Sophia Gishwiler, was a stupid, silly old dotard, under the absolute control of his said wife, without the privilege of exercising any authority, or doing 01 saying anything except as he was permitted by his said wife Sophia;. and that he was not in his right mind, and in every respect utterly unfit to have the care and custody of said infant; and that all the respondents were unfit and disqualified, and improper persons to-have the custody of said infant.
    Defendant in error here also averred, as error, that the order of the court was for respondents, when it ought to have been for relator.
    The common, pleas reversed the decision of the probate court. Thereupon the plaintiffs filed their petition in error in the district court, and this writ issued. The case was reserved in the district court for decision here.

      Jacob Brinkerhoff., for plaintiffs in error.

      Given & Jeffries, and McSweeney, for defendant.
   Ranney, J.

We find no difficulty in arriving at the conclusion-that the probate judge erred in rejecting the evidence offered by the defendant in error, and that the court of common *pleas decided correctly in reversing his judgment. The controversy arose-between the parents of a female child, four and a half years of age,, who are living in a state of separation, as to the right to its custody.

The proceeding was instituted by the father against the mother- and her parents, in whose custody the child then was. After giving evidence tending to show that his wife left him without cause, and was living unjustifiably separate from him, and that he was an 'industrious man, of good habits and moral character, with abundant means to provide for and educate the child, and in every way suitable to have its custody, the relator rested his case. The respondents then gave evidence of their entire fitness for the discharge of the same duty, and of their willingness and ability to-perform it. The relator, in reply, made what must be considered ■exceedingly liberal offers, to show their utter unfitness to have the custody and training of the child, either with a view to its present safety or future welfare. This evidence was rejected by the court, upon what ground we are left to conjecture; but we suppose it to have been for the reason that it should have been given in the first instance, and could not properly be received in reply. This, we think, an application of strictnesss at the wrong time, and in the wrong place. In one view of the law, it is true, the evidence was unnecessary; but this same view shows the judgment, awarding the child to the custody of the mother, erroneous, while the claims of the father remained 'unimpeached. But if a more liberal view is taken, and the claims of the mother are placed upon a perfect -equality with those of the father, it was equally wrong to have foreclosed inquiry as to the qualifications of either. Whatever difference of opinion may have obtained upon other points of this interesting and important subject, it is universally agreed that neither of the parties has any rights that can be made to conflict with the welfare of the child, and that the order of the court should be made with a single reference to its best interests. The contending parties maybe fairly presumed to be more solicitous to gratify *their own interests and feelings, than to develop the whole truth, with a view to the main object of the inquiry; while the child, incapable of judging for itself, and wholly unrepresented in the contest, is in danger of being overlooked. Under such circumstances, it is the duty of the judge to become its protector, and not ■only to listen to all the evidence produced by the parties calculated to throw light upon his path of duty, but also to inform himself from all other legitimate sources, the better to qualify himself to discharge understanding^ the delicate trust.

The rules which regulate the order for jmoducing proof, are rather rules of practice, intended to facilitate the transaction of business, than of evidence, and are never adhered to with unyielding tenacity when they would defeat the ends of justice. It is, however, by no moans certain that any departure from these rules was proposed in the present case. After the husband had given evidence tending to show the wife wrongfully separated from him, and of his entire fitness to have the custody of. the child, it would be going a great ways to say that the wife could retain it without .any evidence of qualification on her part, or giving any reason, «connected with the interests of the child, why it should remain in her custody; and if she was bound to give such evidence, his right to rebut it can not bo questioned. But whether this was so or not, or whether the evidence might or might not have been rejected in an ordinary trial, we feel no hesitation in saying that such strictness can not bo indulged in a proceeding partaking more of the character of an inquest than of a trial, and that the judge has no right to disable himself, by the intervention of any technicality, from hearing everything necessary to an enlightened discharge of his duty.

Another question of very considerable importance, and no little difficulty, may arise in the further progress of the case; but as it is not now necessarily involved, I do not propose to examine it fully.

When husband and wife are living in a state of separation, *and each is equally well qualified, in every resjtect, to be intrusted with the custody and training of their infant children, should a court ever interfere, upon habeas corpus, to change the possession from the one to the other ?

This question can only relate to children of such tender years as to be unable to elect for themselves; since, in other cases, it is well settled, that the court will go no further than to relieve them from all improper restraint. Rex v. Deleval, 3 Burr. 1434; Matter of Wallstonecraft, 4 Johns. Ch. 81. This subject was most elaborately considered, in the celebrated Barry case, by the courts of New York. It first made its appearance in the court of chancery in 1839 (8 Paige, 47), where it will be found reported under the title of The People v. Mereien. The child (a female of delicate constitution) was then but twenty-one months old, and was in the custody of the mother, at her father’s bouse. There were two children of the marriage; the eldest (a boy) was already in the custody of the father, and this writ was prosecuted by him to obtain the custody of the other. Both the parties were highly respectable, and with abundant means to provide for the child. The chancellor, without expressing a definite opinion as to the legal rights of the father, in case the child could with safety be taken from the mother, arrived at the conclusion, that its tender age required the attentions of the mother, and that its safety and welfare were best promoted by having the custody with her.

This decision was made in August; and in October following, the relator prosecuted another writ before Judge Inglis, of the common pleas of New York, which, upon hearing, was dismissed; the judge holding, that the proceedings before the chancellor were a bar to the further prosecution, as to matters in difference between the parties up to the time that order was made, and that nothing had since transpired to change-their rights. These last proceedings being removed into the Supreme Court, the order of Judge Inglis was reversed. 25 Wend. 64.

Bronson, J.,

in delivering the opinion of the court, seems to *have waived the question as to whether the matter was res ad judicata, up to the time the chancellor’s order was made; but he held the judge to have erred in applying it to a writ afterward brought, and for a continued detention of the child. Upon the merits, the opinion of the court was clearly with the relator. Admitting,'to the fullest extent, the right of the court, in the exercise of a sound legal discretion, to have regard to the welfare of the child, in determining the question of custody, they nevertheless insist, that the father, when no such consideration intervenes, “if he chooses to assert his right, has the better title to the custody of their minor children.”. The judge says: “I deém it well settled, that in the absence of any positive disqualification on the part of the father, for the proper discharge of his parental duties, and when there is no other special reason, touching the welfare of the children, for preferring the mother, the father has a paramount right to the custody, which no court is at liberty to disregard.” . . . . “ In short, the claim of the father is preferred, until it plainly appears that the interests of the children require it to be set aside.”

Upon a writ of error prosecuted in the court for the correction of errors, this judgment was reversed by a nearly unanimous vote, and the order of Judge Inglis was affirmed. 25 Wend. 83.

Only the chancellor and Senator Page delivered opinions; and while the former, when the case was before him in chancery, avoided the expression of a decided opinion upon the question I am now considering, he here very plainly indicates his non-concurrence in the doctrines advanced in the Supreme Court; and the latter, in an able opinion containing an extensive review of the authorities, thus states his conclusions:

“ Upon a review of all the authorities binding upon the courts of this state, I have come to the undoubting conclusion that the right of the father to the custody of his child is not absolute, and that such custody is referrable to its interest and welfare, and is *to be selected by the court, in the exercise of a sound judicial discretion, irrespective of the claims of either parent. This conclusion, I believe, is warranted by the law of this state, as well as by the law of nature.”

But this disagreeable (I might almost say unnatural) contest did not stop here. In 1842, the father prosecuted another writ in the Supreme Court, and that court still adhering to its former opinion, and regarding the judgment of the court of errors to have been founded alone upon the question of res adjudicata, by the concurrence of two judges against one, ordered the child restored to him. 3 Hill, 400.

A majority of my brethren think the law correctly stated by the Supreme- Court of New York. I must hear further before I am prepared to come to this conclusion. It rather seems to me, that no active interference between father and mother is allowable, unless the good of the child demands it; and that, as a court would not take from the mother and commit to the custody of the father a child capable of electing, against its consent, it ought not to do it by an exercise of its judgment for one incapable, unless it is plainly seen that the welfare of the child will be thereby promoted. Whatever may be the rights of the father, in a claim for guardianship, or in a common-law action against third persons for harboring the child, I do not think that the custody of the mother of her infant child can be said to be either improper or illegal, so as to authorize the employment of the habeas corpus. The right of the father to the custody and services of his child are founded upon the correlative duty of supporting and maintaining it; but when this duty is assumed and discharged by the mother, both parties are remitted to their natural rights, as the authors of its being, and stand upon a footing of perfect equality.

While all will agree that a mother of unexceptionable character' should not be deprived of the custody of a very young child, I can not believe that, because she may have reared it until others can bestow the necessary care and attention, it can be taken from her, *and the feelings of both mother and child disregarded, for no better reason than that it is the sovereign will of her husband to do so.

The New York court, I am aware, is more than sustained by some recent English decisions; but there is very little in them to recommend them to adoption elsewhere. In the case of the King v. Manneville, 5 East, 221, the court of king’s bench refused to interfere in behalf of a mother, from whom a child but eight months old and at the breast, had been taken by violence by the husband; and in •Skinner’s case, 9 Moore, 278, where an infant child was kept from its mother, under the control of her husband and his mistress, with whom he was living in open adultery, all relief was denied. In the King v. Greenhill, 4 Adol. & Ell. 624, the children .were in the custody of the mother, and upon the application of the father, who was living in adultery with another woman, were ordered to be delivered over to him. It was this case which called forth the eloquent denunciations of Chancellor Lyudhurst, in which he declared, that in the then state of the law, however virtuous and amiable the mother might be, and however brutal and profligate the father might be, the right of custody would nevertheless belong to him; and which led Lord Denman, who, as chief justice of the king’s bench, had concurred in the decision, in a speech in the house of lords, to declare that “ he believed there was not one judge who had not felt ashamed of tho state of the law, and that it was such as to render it odious in tho eyes of Jhe country.” The evil became intolerable ; and parliament finally interfered, and passed an act restoring the mother to her natural rights, to be put upon an equality with her husband, in relation to the care and custody of her children, within the age of nurture. I am strongly disposed to think that the learned chief justice mistook a judicial excrescence upon the law, for the law itself, and that parliament did little more than restore it to its former condition.

The judgment must be affirmed.