text:
    State ex rel. v. Henderson.
    1. A preliminary ordinance, passed pursuant to a general ordinance of the city council of Cincinnati for establishing street railroads, designating a route for a proposed street railroad and directing the city clerk to advertise for sealed proposals to construct and operate such road, is not an ordinance creating a right, or granting a franchise, or involving the expenditure of money in the sense in which those terms are used in section 1666 of the Revised Statutes, and does not require the approval of the mayor of said city before it takes effect.
    2. Mandamus will not lie upon the relation of a citizen and owner of land abutting upon a street through which said line of railroad would pass if constructed, to compel the city clerk to make the advertisement required of him by the ordinance, when he wrongfully refuses or neglects so to do.
    Error to the District Court of Hamilton county.
    On June 11,1881, Nathaniel Caldwell filed with the board of public works of Cincinnati, and with the city clerk for the common council, an application to construct and operate a line of street railroad in that city, to be known as “ Route 20,’ ’ under the provisions of sections 1 and 2 of the general ordinance for the operation and government of street railroads then in force. The board of public works thereupon transmitted to council an ordinance designating the route so applied for, and requiring the city clerk to advertise for sealed proposals to construct and operate said railroad, and with a recommendation that it be passed. On the 24th of February following, this ordinance was finally passed. The ordinance, however, was not approved by the mayor, and, coming up again in council for reconsideration, failed to pass by the requisite majority. The city clerk, being of opinion that the ordinance was of no force, by reason of the mayor’s failure to approve it, refused to advertise for proposals to construct and operate the road. To compel him to do so a proceeding in mandamus was instituted in the district court of Hamilton county, upon the relation of John R. Meyer, a citizen of Cincinnati, and the owner of land abutting upon Dalton avenue, one of the streets upon which it was proposed to locate and construct this line.
    Upon trial, that court rendered judgment for defendant, to review which judgment the present proceeding in error is prosecuted before us.

      /S'. A. Miller, for relator,
    urged that no ordinance relating to street railroads requires the sanction of the mayor or board of public works, except the one granting the franchise under sections 2501 and 2502, and which is the final ordinance that awards the contract as above mentioned. Where a grant is made, there must be both grantor and grantee, and where a franchise is granted, there must be a grantee in being to accept it. There is no grantor or grantee in the ordinance to establish Route No. 20 ; there is no franchise embodied in it, and no attempt to grant a franchise. There is no right created by it, and in the nature of things there can be none, neither is there any one who can take or accept any right, by, through or under it. The ordinance not then being one which it was necessary for the mayor to approve in order to its validity, the clerk of the city council should have advertised as directed by it, and the plaintiff, being the aggrieved party, is entitled to the mandamus prayed for. There is no other remedy.

      George B. OTtey, also for the relator,
    claimed, 1st, that the ordinance under consideration was merely one of a number of steps leading up to the final ordinance which would grant the franchise to the lowest bidder, and create in him the right to construct the road. It was not contemplated by the legislature, in conferring the veto power upon the mayor, that every preliminary step taken by council with respect to the final adoption of a measure, should be subject to his veto. He is only clothed wfith authority to forbid the adoption of the .measure, and the time to exercise his power is upon its final passage. Howeth v. Jersey City, 1 Vroom, 93. 2d. As to the ordinance involving the expenditure of money. From aught that appears in the record, the city may have a contract to have done all its advertising for a gross sum. At any rate, a fund had been appropriated, and was then in the treasury, for advertising purposes. The appropriating ordinance was subject .to the mayor’s veto. In failing to forbid its passage, he lost further control over the fund thereby appropriated.

      F. Kumler, city solicitor, and Stallo, Kitt/redge & Shoemaker, and Paxton <& Warrington, for respondent:
    1. "We claim that the relator is not a person beneficially interested within the meaning of the law providing for the wri't of mandamus. Rev. Stat. § 6744; High on Extraordinary Remedies, § 33 ; State v. County Commissioners, 16 Ohio St. 425, 430. We also claim that the respondent is a mere clerical officer, the clerk of the council, and has no duty to perform in publishing advertisements, except as the council may require him to act. This it has not done. On the contrary, the council has acquiesced in the mayor’s power to veto the ordinance, and in his action vetoing it. State v. Yeatman, 22 Ohio St. 546.
    2. The alleged ordinance purporting to establish Route No. 20 for street passenger railroads and to direct the city clerk to advertise for sealed proposals to construct and operate the same, is invalid and void ; because, It was not legally adopted by the common council in the first instance, h. Even conceding such adoption, it was not approved; on the contrary, was vetoed by the mayor, and the veto acquiesced in by the common council, o. The ordinance in its nature and terms involves the expenditure of money, and creates a right, within the meaning of the acts vesting in the mayor the veto power and creating the board of public works, d. It involves the expenditure of money within the meaning of what ai’e known as the “Worthington” and “Burns” acts, and no certificate was made by the city auditor (now comptroller), to the said council^ that the money so to be expended was in the treasury specially set apart for the purpose. State v. Hoffman, 25 Ohio St. 328.
   Longworth, J.

Tbe correct disposition of this case depends upon the true effect and scope of the ordinance designating the rout®, and directing the clerk to advertise for proposals. If it falls within that class of ordinances which, to be of any validity, require the approval of the mayor, it is plain that the judgment in defendant’s favor was right. The statute regulations upon this subject are found in section 1666 of the Revised Statutes, which is as follows:

“ Sec. 1666. The votes of a majority of all the members elected to each board of the common council shall be necessary to pass any ordinance, resolution, or order, in which an expenditure of money is involved, or the approval of a contract for the payment of money, or for granting a franchise, or creating a right, or for the purchase, lease, sale, or transfer of property, which shall have passed both boards of the common council in separate session (except such as levying special taxes for the improvement of streets), shall, before it takes effect, be presented, duly certified by the clerk, to the mayor of the city for his approval.”

That the ordinance in question does not grant a franchise is manifest,- it does not purport to do so, nor is any grantee named to receive it. Counsel have argued, with much ingenuity, that it creates a right, and therefore comes within the section quoted, but we are wholly unable to coincide with this position, for reasons which will be stated further on. Our chief difficulty lies in the question whether it involves the expenditure of money. That it may result in the expenditure of money is probable, if not certain, since it directs an advertisement in the public journals: yet we think that it is not every ordinance which may possibly, or even necessarily, result in the expenditure of money, that can próperly be said to involve the expenditure of money in the sense in which that term is used in the statute. It will be observed, that in the section quoted, ordinances providing for the purchase of property are expressly provided for, and thus in a manner distinguished from ordinances in which an expenditure of money is involved ; and yet surely such contracts must often result, at some time, in the • expenditure of money. Ordinances, resolutions, and orders approving contracts for the payment of money, are likewise specially and separately mentioned. We think a proper application of the maxim, “ Verba generalia resbringunt/wr ad bidbilitatem rei, ” warrants the conclusion that it was not the legislative intent to bring within the statute ordinances which do not directly involve the expenditure of money. Indeed, it might be said that most ordinances, orders, and resolutions, passed by council, in some manner result in the expenditure of money. For example, a resolution declaring a public improvement necessary, must be advertised, and yet we never heard it claimed that such a resolution requires the approval of the mayor before it takes effect.

An inspection of the general ordinance (§ 3), which is set forth in the record, further shows that the successful competitor is required to pay to the city auditor $100, “ to cover the expenses of printing and publishing the necessary resolutions, notices and ordinances.” If among these is included the ordinance in question, then, possibly it may never even result in the expenditure of money.

Without attempting here to draw a definite line between those ordinances, orders and resolutions which do, and those which do not, require the mayor’s approval, we are content with saying that this ordinance did not.

Such being our conclusion, it follows that it became the duty of the clerk, under the ordinance, to advertise for sealed proposals, which he has not done. Can he be compelled by mandamus to perform this duty, upon the relation of a citizen and owner of property upon the line of the proposed railroad £ As regards the degree of interest on the part of the relator, requisite to make him a proper party on whose information the proceedings may be instituted, a distinction is taken between cases where the extraordinary aid of a mandamus is invoked, merely for the purpose of enforcing or protecting a private right, unconnected with the public interest, and those eases where the purpose of the application is the enforcement of a purely public right, where the people at large are the real party in interest, and, while the authorities are somewhat conflicting, yet the decided weight of authority supports the proposition that, where the relief is sought merely for the protection of private rights, the relator must show some personal or special interest in the subject matter, since he is regarded as the real party in interest and his rights must clearly appear. On the other hand, where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party, and the relator need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen, and, as such, interested in the execution of the laws. See High on Ex. Rem. § 431, et seq.; Tapping on Mandamus, § 28; Railroad v. Hall, 91 U. S. 343, 354.

For the purposes of this opinion we are willing to admit that, if the relator has, under this municipal legislation, the right to insist, as against the city, that Route 20 shall be constructed and established, then the writ properly lies upon his relation.

On the other hand we consider it clear that, if a lawful discretion exists in the council to grant or to withhold the franchise, then such discretion cannot be directly or indirectly destroyed or limited by the writ of mandamus. See Exparte Black, 1 Ohio St. 30. This brings us again to the consideration of the scope and effect of the ordinance under discussion. It will be noticed that no statute is found requiring any advertisement for proposals as therein provided for. The ordinance is passed by council under a self-imposed rule contained in their own general ordinance, which they are at liberty to change or repeal at any time.

It is manifest that the object of such advertisement is simply and solely to advise council upon what terms such route may be constructed and operated, and to enable that body to grant the franchise to the person or company best able to sub-serve the public interests. It might be that no proposals would be received, in which case it is probable that the route would never be constructed, and it might be that the proposals received would be of such a character that council would decide not to award the franchise to any one. At least it is certain that the mere passage of this ordinance and the publication of an advertisement under it in no manner binds the city to see that such a railroad route shall be constructed and operated. Council might in its wisdom stop there and refuse to take further steps; nor could it be claimed for a moment that mandamus would lie to compel any act upon its part. We are not now considering what would be the case had council granted the franchise and provided for the construction of the road. What would be the relator’s rights in such a state of affairs it is unnecessary to discuss. Suffice it to say that the publication of the advertisement for proposals would invest him with no right whatever against the city or any of its officers or against any person or company. How then can he ask this order against the city clerk ? He is an officer of council and bound to obey its orders. If he fails to do so, that body is by no means powerless; but if it is satisfied,, what business, we ask, is it of any other person ? I cannot complain of your agent because he has not performed his duty toward you in a matter in -which I have no interest and where you are satisfied. Were this writ asked upon the relation of the city against its officer the case might be otherwise, but the city is not complaining.

We are unable to see'that any right of the relator has been invaded or postponed, or to find interest in him which would be legally affected by granting him the relief prayed for. The district court properly refused the writ.

Judgment affirmed.


source: Caselaw Access Project

author: McIlvaine, J.

license: Public Domain

text:
    Mighton v. Dawson.
    1. The right of action on an executor’s or administrator’s bond for the benefit of the estate, given by section 184 of the act of March 28, 1840, providing for the settlement cf the estates of deceased persons, was not abrogated or superseded by the organization of the probate court, or by the code of civil procedure.
    2. Such action .may be prosecuted in the name of a legatee, who may be authorized by the probate court to bring suit on such bond.

      ■ 8. The fact that an account purporting to be a final account has been settled in the probate court is no bar to an action under said section to recover assets converted by an excutor to his own use and not accounted for.
    4. Previous to such suit by a legatee it is not necessary that the probate court should find or fix the amount of the legacy or order its payment.
    Erxíor to the District Court of Cuyahoga county.
    The original action was brought in the year 1875 by the plaintiff, a legatee under the will of Robert Dawson, deceased, against the defendants, on the bond of the executors, wherein James W. and Martin B. Dawson were principals, and Brands and Robert Tryon were sureties.
    The plaintiff in her amended petition alleged in substance the following facts, viz.: The execution of the will by Robert Dawson, his death in May, 1870, the pi’obate of the will, the issuing of letters testamentaiy to James W. and Martin B. Dawson, the execution of the bond by defendants, the allowance by the pi’obate eoui’t of leave to bi’ing the suit, breaches of the bond in not returning a true inventory and in the conversion of certain specified assets by the executoi’S to their own use, and pi’ayed for a judgment in the name of the state of Ohio against the defendants for the full amount of the bond, to wit, $4,000.
    After a general demurrer to the petition was overruled, the defendants, by answer, denied all the allegations of the petition, after the execution of the bond. And for second and third defenses to the action the defendants alleged as follows:
    “ 2. Bor further answer defendants say that on December 4, 1875, said J. ~W. and M. B. Dawson, as executors of the estate of said Robert Dawson, deceased, filed in the probate Court of Cuyahoga county their final account of their doings with the assets of said estate; that notice of the filing thereof was duly given to the plaintiff and all others interested ; that no exceptions were filed thei’eto, and that afterwards, on January 17, 1876, the same was duly examined by said court and approved and ordered to be recox’ded; that by law said executors were thereby discharged from all further liability to plaintiff and all others interested beyond what assets and accounts showed to be in their hands, and thal the same shows no assets applicable to the payment of plaintiff’s legacy.”
    “ 3. The defendants, for further answer to said petition, say that at no time before the bringing of said action did the probate court, which by law has exclusive control of the settlement of the estates of deceased persons, fix, determine or find any amount due to the plaintiff as legatee under the will of said Robert Dawson, nor order any distribution of any part of the assets of said estate to the plaintiff; wherefore defendants say that the plaintiff ought not to have or maintain said action.”
    In charging the jury, the court of common pleas, among other things, said:
    “ But I must call your attention to the fact that in addition to the denial by the defendants of all the matters set up in the petition except those admitted, that they set up in their answer several other matters by way of several defenses, on which I will now specially instruct you.
    “ The defendants for their second defense say, that the said executors, on December 4, 1875, filed a final account of their doings with the assets of the said estate in the probate court, the plaintiff and others interested had notice thereof; that no1 exceptions were filed, and that on January 17,1876, the same was duly executed and approved by said court, and that by law they are discharged from all liability beyond that for assets shown in said account.
    “ On this defense I will simply say to you that if all the evidence that has been offered by the defendants in support of it is taken as true, that neither it nor any part of it constituted a defense to this action if the allegations of the petition aro true.

      “ The defendant’s third defense alleges that the probate court at no time before the commencement of this action fixed or determined any amount due to the plaintiff as legatee under said will, nor did it order any distribution of any of the assets to the said plaintiff.
    “I say also on this defense, that if it is all true that it constitutes no defense to this action if the allegations of plaintiff’s petition are true. ”
    In the court of common pleas, a verdict and judgment were rendered for plaintiff in the form following: “ And thereupon, after verdict and before judgment, came the defendants and filed their motion for a new trial of this cause, which is heard by the court and overruled, to which ruling the defendant excepts. It is, therefore, considered that the state of Ohio do recover of the said defendants the sum of four thousand dollars damages and the costs of this suit to be taxed, for the benefit of the plaintiff, Amelia A. Mighton, and all others interested in the estate of Robert Dawson, deceased, late of the county of Cuyahoga, and that execution issue to collect the same. And it is further ordered that execution issue against the defendants, James W. Dawson and Martin B. Dawson as principals, and against Francis Tryon and Robert Tryon as sureties.”
    On petition in error to the district court, by defendants, the foregoing judgment was reversed ; and this proceeding is prosecuted to reverse the judgment of the district court.

      S. O. Griswold, for plaintiff in error.

      Stevenson BurJse, for defendant in error.
   McIlvaine, J.

The plaintiff seeks to defend her action and judgment in the court of common pleas under sections 184, et sec[. of the act of March 23, 1840, “To provide for the settlement of the estates of deceased persons.” Section 184 is as follows: “ When it shall appear to the court, on the representation of any person interested in the estate of any deceased testator or intestate, that the executor or administrator has failed to perform his duty in any other particular than those above specified in the two preceding sections, the court may authorize any creditor, next of kin, legatee, administrator de bonis non, or other person aggrieved by such maladministration, to bring a suit on the bond.” The two preceding sections provide for an action on the bond by a creditor, legatee, widow or distributee, for his or her own use, after the amount of his or her claim has been ascertained and payment on demand is refused. Section 185 directs that the suit authorized under section 184, shall be brought in the court in which the bond is filed, either in the mode directed by the act entitled An act pointing out the manner in which suits may be prosecuted on the bonds of executors, administrators and officers, or it may be prosecuted by bill in chancery, in the name of the person entitled to the action.” And section 180 provides that if the action be brought for any other breach of the condition of the bond, than neglect to pay a creditor, legatee, widow or distributee as provided in sections 182 and 183, execution may be ordered in the name of the state, for the full value of all the estate of the deceased, that shall have come into the hands of the executor or administrator, and for which he shall not satisfactorily account, and section 187 provides that all moneys made on such execution, shall be paid over to the rightful executor or administrator, other than the executor or administrator sued, and shall be assets to be administered according to law.

On the other side, and in support of the judgment of the district court, it is claimed, that the sections of the executors and administrator's act above referred to, and the action thereby authorized have been superseded by subsequent legislation. The subsequent legislation referred to is the creation of the probate court by constitutional provision and the transfer to it from the court of common pleas of probate jurisdiction, whereby the probate court became invested with exclusive power to grant and revoke letters testamentary and of administration, and to direct and control the conduct and settle the accounts of executors and administrators, and to order the distribution of estates. Act of March 14, 1853, regulating probate courts. Also section 25 of the Civil Code of 1852, providing that every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 27.” And also section 566 of the code in relation to actions on official securities, substituted for the act referred to in section 185 of the administration act as pointing out the manner in which suits may be prosecuted on the bonds of executors, administrators and officers, which was repealed at the same time by title 20 of the Code. This section provides only for actions on official bonds for the benefit of the plaintiff, differing widely from the action under review.

Clearly, the provisions of the executors and administrators’ act relied upon by plaintiff have not been expressly repealed; and it is also clear that no simialr remedy for the benefit of the estate has been provided by subsequent legislation, therefore, it cannot be said, that they have been repealed by necessary implication. Indeed, section 184 was re-enacted as section 6212 of the Revised Statutes, and no one will assume that any other remedy given by law upon the bond of an executor or administrator, was thereby taken away on the ground of inconsistency. This view of the case is entirely consistent with the case of Dawson v. Dawson, 25 Ohio St. 443.

It is claimed that the plaintiff could not prosecute the action in her own name. In so far as this objection rests on the argument that an administrator de bonis non alone can maintain such action for the benefit of the estate, the statute itself is a sufficient answer. The difficulty in administering the amount recovered as assets of the estate was sufficiently explained, for the purposes of this case, in the opinion of Ranney, J., in the case of The State v. Cutting, 2 Ohio St. 1.

It is said, the action should have been in the name of the state, the payee of the bond. Admitting that the action might have been in the name of the state, and that such would have been the better practice, my brethren are of opinion, the judgment being right, that no prejudice resulted to defendants for which it ought to have been reversed. My own judgment is, that the suit in the name of the plaintiff was expressly authorized by the statute. She was authorized, under section 184, “ to bring a suit on the bond.” By section 185, she was authorized to sue in the mode directed by a particular statute, or to prosecute it by bill in cham,cery in her own name. By the code, the distinction between actions at law and suits in chancery was abolished. This related to matter of form only. The civil action of the code was substituted for actions at law and suits in chancery. If, before the code, the plaintiff was authorized to bring such suit in her own name in chancery, since the code, she may do the same thing in a civil action. If, therefore, the plaintiff could not prosecute the authorized suit in her own name under the statute referred to, or any substituted statute, we are bound to assume that she invoked the chancery jurisdiction of the court, which she could do only in her own name.

The court of common pleas did not err in charging the jury that the final settlement in the probate court of the accounts of the executors as stated in the second defense did not constitute a bar to plaintiff’s action, if the allegations of the petition were true. The petition charged the executors with converting to their own use §985 in money, a promissory note executed by Thomas Ward for §2,200; also another note by Milton and Chester Purdy for $1,800; also a span of horses and three hundred bushels of oats which came into the hands of the executors, but which they refused to administer as assets of the estate. It is not claimed in the answer that these items were administered as assets or accounted for in the settlement. If such assets existed in the hands of the executors, they can make no final settlement until this property is accounted for. As far as this matter of defense is concerned, the existence of such assets and their conversion are admitted by not being denied. This is no case of res adjudiaata.

The court of common pleas was also right in instructing the jury that it was immaterial in the case that the probate court had not, before the commencement of the action, found the amount due to the plaintiff as legatee under the will.

Such a finding, before suit, is necessary under sections 182 and 188, which provide for actions on behalf and for the sole benefit of the plaintiff; but under section 184, where the suit is for the benefit of the estate, it was enough that the plaintiff was a legatee and that fact was sufficiently shown upon the face of the will.

Some other questions have been discussed by counsel, but we find no error in the record of the court of common pleas for which judgment should be reversed. Therefore, the judgment of the district court is reversed, and that of the common pleas affirmed.


author: Johnson, J.

text:
    Bingham et al. v. Hill.
    A summons and an order for the delivery of specific personal property were issued, upon a petition, and a single affidavit, duly sworn to, annexed, which, in addition to a verification of the petition, contained allegations sufficient to entitle the party to such an order. On error to reverse a final judgment founded on such petition and order, Held, that there is no substantial error to the prejudice of the other party, which will warrant a reversal, the error being one of form and not of substance.
    Error to the District Court of Cuyahoga county.
    The several grounds assigned for a reversal of this judgment have been considered, but only one of them is reserved for report.
    As to that, the facts are these : Harriet E. Hill filed her petition for the recovery of specific personal property, and for damages for its detention. Instead of a verification to the petition, and a separate affidavit to obtain the order of delivery, there was but one affidavit. In it there is a statement that the facts stated in the petition are true and an additional statement of facts which is required by the statute to obtain an order of delivery. It was duly sworn to and attested.
    On this a summons and order of delivery was issued and served. The property was seized and delivered to the plaintiff on her complying with the statute.
    The defendants made a motion to set aside the service of process and strike the petition from the files for two reasons:
    1. There was no petition verified as required by law.
    2. There was no affidavit for replevin.
    This motion was overruled and exception was taken. A judgment was rendered for the plaintiff. To reverse the judgment of the district court affirming this judgment is the case now here.

      Mix, Noble & White, for plaintiff in error.

      Groot & Blcmdm,, for defendants in error.
   Johnson, J.

I. As to the verification of the petition. It is in due form, and properly sworn to. If it is defective, it is because the affidavit, in addition to the proper averment, as a verification, contains additional allegations to entitle the affiant to an order of delivery also.

As a verification this additional matter may be regarded as surplusage. It does not vitiate.

II. It is said there is no affidavit which entitles the plaintiff to -an order of delivery. It is conceded that the affidavit filed, contains all the necessary statements to authorize the issue of an order of delivery, but the claim is, there should be a separate affidavit, and that one affidavit, which is good both as a verification and for an order of delivery, renders the process issued thereon void. This is the better practice, and a departure should not be encouraged. Here, however, the petition is good in form and substance, and the affidavit contains all the facts, and is in due form necessary to a verification, and also such additional facts as are required to entitle the plaintiff to an order of delivery. It is properly sworn to. This departure from the better practice is in a matter of form and not of substance. There is no substantial error to the prejudice of the plaintiff in error, which will authorize or warrant a reversal Rev. Stat. § 5115.

Judgment affirmed.


author: By the Court.

text:
    Gurney v. Gurney.
    The final judgment of the district court was an order of partition of real estate, and the cause was remanded to the common pleas for execution, where an order of sale was made, the property being incapable of division. The case is pending here on error, to reverse the judgment of the district court.

      Held: That under subdivision 3 of section 6718 of the Revised Statute's, the court of common pleas, or a judge thereof, may fix the amount of the undertaking for stay of proceedings on the mandate.

      Motion for stay of execution in cause No. 1077 on the general docket, which is pending here on error, to reverse the judgment of the district court of Licking county.
    It appears that the district court made an order of partition of real estate, and remanded the case to the common pleas for execution of the order, and that such proceedings have been had, that the property has been appraised, being found incapable of division, and has been ordered to be sold. It further appears that on a like motion to this, in the court of common pleas, that court held, that it had no power to fix the amount of the undertaking for stay of execution.
    This motion is now made here for the same purpose.

      Charles H. Kibler and Smythe da Sprague, for motion.

      J. Buckingham, contra.
   By the Court.

Under subdivision 3 of section 6718 of the .Revised Statutes, the court of common pleas or any judge thereof may fix the amount of undertaking for a stay of execution of the proceedings in that court, while the case is pending here on error.

Motion overruled.


author: Okey, J.

text:
    Shultz v. Cambridge.
    1. Where an act is made punishable by fine and imprisonment, the words in which the offense is defined and punishment prescribed must be strictly construed, whether they are found in a statute, or an ordinance or by-law.
    2. General words, following particular and specific words, must, as a general rule, be confined to things of the same kind as those specified.
    3. In an ordinance prohibiting saloon-keepers from permitting at, in or about the doors, windows, openings, or in the interior of their saloons, “ any blind, 'screen, painted or frosted glass, shade, curtain or other device,” the words “other device” do not embrace a board partition between different rooms of a building, such partition extending from floor to ceiling, fastened in the usual manner, and intended by the owner, when he placed it in the building, as a permanent accession to the realty.

      Error to tbe District Court of Guernsey county.
    By an order of tbe town council of tbe incorporated village of Cambridge, adopted May 6, 1878, and which took effect .on the same day, it was ordained, “ that it shall be unlawful for any person or persons, the owner or owners, agent or agents, occupant or occupants of any house, shop, room, booth, arbor, cellar, or place, where ale, beer, or porter is sold or furnished to be drank, or any place of habitual resort for tippling or intemperance, or where intoxicating liquors are sold or furnished for such tippling or intemperance, to permit at, in or about the doors, windows or other openings of said premises, or in the interior of any house, shop, room, booth, arbor, cellar or place where intoxicating liquors are sold or drank, any blind, screen, painted or frosted glass, shade, curtains or other device, to prevent a free and unobstructed view from the outside of said premises of the interior of the same.”
    The marshal of the village was made an informer as to violations of the ordinance, and fine and imprisonment were the prescribed punishments.
    The ordinance was passed, it is claimed, under authority of the municipal code, amended 72 Ohio L. 107, which conferred on the village power “ to regulate ale, beer and porter houses or shops,” by ordinance, and enforce such ordinance by fine and imprisonment. 66 Ohio L. 167; 75 Ohio L. 198, 233; Rev. Stats. §§ 1692,1861-1869 ; 78 Ohio L. 254.
    Herman Shultz was ax-rested June 13, 1878, on a wax-i-ant issued on an affidavit which, omitting caption, signature of affiant, and jux-at, was as follows :

      “ Befox-e me, William M. Farrar, mayor of said incorporated village, pex-sonally carne E. M. Stottlemire, who being duly swox-n according to law, deposeth axxd saith, that Herman Shultz, late of the incorpox-ated village of Cambx-idge, on or about the 13th day of June in the year of our Lord one thoxxsand eight hundred and seventy-eight, at the incox-porated village of Cambridge, aforesaid, did unlawfully, a.t and in the interior of a certain x-oom within the incox-poi-ated village of Cambridge, Ohio, where ale, beer and porter, and other kinds of intoxicating liquors are sold and furnished to bo drunk, permit a certain device, called a partition, to be and remain so as to prevent a free and unobstructed view from the outside of said premises of the interior of the same, contrary to the provisions of the ordinance of May 6, 1878, and this deponent doth verily believe that the said Herman Shultz is guilty of the fact charged, and further this deponent saith not.”
    Shultz pleaded not guilty, and on the trial the facts were shown to be as follows :
    ££ The complainant, to maintain the issue on its part, introduced testimony showing that before and since the passage of said ordinance the defendant with his family resided in a building owned by his wife, situated on the north-east corner of Main and Walnut streets, in said village of Cambridge; that said building is a one-story frame with south end facing on Main street, and extending back north upon Walnut street about forty feet. The end fronting upon Main street consists principally of glass doors and windows, the interior being divided into several rooms by partitions, the said rooms being twelve, thirteen and fifteen feet square respectively. The first and second rooms are occupied as a beer saloon, carried on by defendant and his wife, and where ale, beer and native wines are sold by them, and one or more rooms back of these are used as lunch and dining rooms. A counter runs from the front window on the east side of the front room back into the next room, with a- space between this counter and the east wall of the building, a partition made of boards extending from the west wall to and covering the counter, and is built from the floor to the ceiling, with a door near the center by which to pass from the front to the next room. The beer and other liquors are kept in the front room, behind the counter, and are sold and drank sometimes at the counter in the front room, and sometimes carried to customers in the second and third rooms, where tables and chairs are provided for their use, and where the beer and other liquors provided are drank, and which rooms are more frequently used for that purpose than the front room, access being had to said second and thii’d rooms either from the front room or from Walnut street by a door leading into the second room, and there is one in that room facing on Walnut street without a blind; that prior to the passage of said ordinance a lai’ge screen was kept in the front room which obstructed the view from Main street to the place where customers stood in drinking at the counter; and blinds were used at the front windows for the same object, all of which have been removed since its passage. That the partition, running from the west side of the front room to and over the counter, is the partition named in the affidavit under which the prosecution was instituted. That the pavement in front of the building on Main street is much more frequently used by persons passing and repassing than the pavement on Walnut street, and that the defendant has been engaged in selling beer, ale and native wines in said rooms, as herein before described, since-the passage of said ordinance, and'refuses to remove the said partition ; and the defendant, to maintain the issue on his part, offered evidence and testified showing that he and his family have occupied the building described some time prior to the passage of said ordinance, and since and during said time have used portions of the same as a beer saloon and eating house, the beer, etc., being kept in the front room behind the counter and sold and drank there; and also often drank by customers in the second and third rooms where it was carried to them. That the building had formerly been used as a grocery, and when taken possession of by defendant and his wife consisted of one entire room, but was by them divided into separate apartments by partitions, the first and second from the front being made of boards, extending from the floor to the ceiling, but permanently attached to the floor, ceiling and wall. That said first partition, extending from the west wall to and over the counter, was not originally put there for the purpose of obstructing the view from the front, but to divide the room, and as a fixture, as the other partitions were. That he had kept a large screen ¿ear the front door, and had blinds to the front windows to obstruct the view from Main street, up to the passage of said ordinance, and until he had notice from the marshal to remove the same; and they were then removed. That persons passing along the pavement on Walnut street can see into the second room through the window, the door leading into that room from Walnut street not having any window or lights in it, and the window not having any blind or anything to obstruct the view.”
    The mayor, on these facts, found Shultz guilty, and assessed a fine, and ordered him to stand committed until such fine and the costs should be paid.
    The judgment was affirmed in the court of common pleas and district court, and this petition in error is filed to reverse the several judgments.

      J. II. Collins, for plaintiff in error:
    1. The ordinance is not only unreasonable, but it is in conflict with the policy of the state on the subject. Canton v. Nist, 9 Ohio St. 439; Thomson v. Mt. Vernon, 11 Ohio St. 688; Burckholter v. McConelsville, 20 Ohio St. 308.
    2. The ordinance does not extend to a partition. Sug. Real Prop. 220; Clement v. Hamilton Co., 2 Am. L. Rec. 729; Merchants’ Bank v. Trust Co., 1 Disney, 469, 476.

      W. M. Fa/rrar, for defendant in error.
   Okey, J.

Where an act is made punishable by fine and imprisonment, the words in which the offense is defined and punishment prescribed must be strictly construed, whether they are found in a statute or in an ordinance or by-law. And general words following particular and specific words, must, ordinarily, be confined to things of the same kind as those specified. Bishop’s Written Laws, §§ 245, 246 ; Hai’d. Const. Stats. 83 ; Maxw. Int. Stats. 297; Denbow v. The State, 18 Ohio, 11. Thus, in R. v. Cleworth, 4 B. & S. (116 E. C. L.) 927, Coekburn, C. J., said : “ There is a general expression, ‘ other person whatsoever ;’ but, according to a well established rule in the construction of statutes, general terms following particular ones apply only to such persons or things as are ejusd,em generis with those comprehended in the language of the legislature.” True, this rule is not to be employed in any case to defeat the plain intent of the general assembly (Woodworth v. The State, 26 Ohio St. 196; R. v. Edmundson, 28 L. J. 213, M. C.), but tbe rule seems to be strictly applicable here. And, according to a general rule equally applicable, sucb general words, following particular descriptive words, do not include such a partition, for the further reason that it is of a more permanent and important character than the things specifically mentioned. Ib.; Canterbury's case, 2 Coke, 46 b. Obviously, if the partition had been placed in the building at the time it was erected, an attempt to punish Shultz for failing to remove such part of his house, would have been mere usurpation of power; and we are unable to see that the case supposed is materially different from the case presented. We are perfectly clear that the words, “blind, screen, painted or frosted glass, shade, curtain, or other device,” do not embrace such a partition. The further question presented,— that is, whether the ordinance is reasonable and consistent with the policy of the state as declared in the statutes, — we need not determine.

Judgment reversed.


author: Longwobth, J.

text:
    Bach v. State.
    Upon the trial for a capital offense the first thirty-six persons summoned who answer to their names, and who are without the disqualifications named in sections 7268 of the Revised Statutes, constitute the panel from which the jury for the trial of the cause is to be chosen ; but if so many of this number be set aside on challenge as will not leave twelve persons competent to serve, the vacancies so caused must be filled in the manner directed by section 7275, as amended, 78 Ohio L. 181. And it is error for the court, against the objection of the prisoner, to order a special venire to issue for persons to fill such vacancies whose names are to be drawn from the jury box.
    Error to the Court of Common Pleas of Wood county.
    The plaintiff in error was indicted and convicted in the court of common pleas of the crime of murder in the first degree, and sentenced to suffer death.
    At the trial, while a jury was being impaneled, and thvrty-fiue men having the qualification of jurors had answered to their names, the accused moved the court to have the panel filled by drawing from the box a sufficient number of names ; the court thereupon ordered twelve ballots to be drawn from the box and directed a venire to issue for the persons whose names were drawn. Thus the requisite number of thirty-six was obtained. This number was exhausted by challenges, peremptory and for cause, and also the remaining names upon the special venire. The court thereupon, against the objection and exception of the accused, ordered another special venire to issue for twenty additional names to be drawn from the box. By this means the panel was filled. The accused, having exhausted his peremptory challenges, challenged one Amos Twine, one of the twenty for whom the special venire had been issued, for cause that he had not been properly selected to serve as a juror, but the court overruled the challenge and permitted said Twine to serve as a juror upon the trial. To this the defendant excepted.

      E. T. Emm and J. A. Shannon, for plaintiff in error.

      James V. Troup, prosecuting attorney, for defendant in error.
   Longwobth, J.

The method for impaneling juries for the trial of capital causes is provided by sections 7267, 7268, 7269, 7270, and 7275 of the Revised Statutes; the last named section having been amended. 77 O. L. 181. Sections 7267 and 7268 provide for the summoning of thirty-six persons, having the qualifications of jurors, who are to constitute a panel from which to select a jury for' the trial of the cause. Should thirty-six such persons not be present, a special venire may be issued by the court of its own motion, and, upon motion of defendant, shall be issued, for a sufficient number to make the full panel of thirty-six. This is directed by section 7269.

From this number so obtained, the petit jury is selected ; provided a sufficient number remain after all challenges, peremptory and for cause, have been exhausted. Should this, however, not be the case, all vacancies so caused must be filled in the manner.pointed out by section 7275, as amended, either from the bystanders, or, if demanded by the accused, by a special venire containing names selected by the presiding' judge.

That the jury shall be chosen as provided by statute, the accused has .a perfect right to insist; and it was clearly error on the part of the court, against his objection, to order the panel filled by persons whose names were drawn from the box.

Judgment reversed.


author: MoIlvaine, J.

text:
    Railway Co. v. Heiskell.
    An owner of land through which a railroad passed agreed with the railroad company to maintain and keep in repair a line of fence on the south side of the road, and the company agreed to do the like on the north side. Afterwards the company, for its own convenience in rebuilding a bridge over a stream of water there situate, removed a portion of the fence on the south side of the road, and, when the bridge was completed, instead of restoring the portion of fence removed, constructed, as a substitute therefor, wing fences from the abutments of the bridge, over its right of way, to the ends of the old fence, so as to prevent the passage of stock from the adjacent fields to the railroad. The portions of fence thus substituted for the part of the old fence which had been removed were accepted by the land-owner as an inclosing fence to his fields.

      Held: 1. By accepting the new wing fences as a part of the line of fence inclosing his adjacent fields, it became the duty of the land-owner to keep the same in repair.
    2. Occasional repairs of the new wing fences by the company did not release the land owner from his duty to keep the same in repair.
    ,3. Such land-owner is without remedy where his stock passes, by neglect to make such repairs, to the track of the railroad and is killed by a passing train, unless it be shown that the killing was caused by negligence in running the train.
    4 The burden of proving such negligence rests on the plaintiff. It cannot be inferred from the fact of killing. Railroad Co. v. McMillen, 37 Ohio St. 554

      Error. Reserved in the District Court of Madison county.
    The original action was brought by Daniel O. Heiskell against the Pittsburgh, Cincinnati & St. Louis Railway Company in the common pleas of Madison county, to recover the value of three colts and a sow killed on the 25th of April, 1874, upon the line of the defendant’s road, by passing trains, through the alleged negligence of defendant in maintaining sufficient fences, and in the management of its running trains.
    The defendant denied negligence on its part, and alleged, “ That by a written agreement between the plaintiff and defendant’s lessor, dated November, 1853, the plaintiff was bound to keep up and maintain the fence at the place where the animals came upon the track, and that at the time of the injury the animals were trespassing on defendant’s track, by reason of the carelessness of the plaintiff in not keeping up the fences which he was bound to maintain.”
    The plaintiff replied that the contract relied on was without consideration, and had been abandoned by the parties.
    A verdict and judgment were rendered for the plaintiff for $818.06. Divers exceptions having been taken, the defendant brought this proceeding in the district court, where it was reserved for decision here.

      Harrison, Olds <& Marsh, for plaintiff in error :
    It was Heiskell’s duty to have rebuilt his fence when it was taken down by the company. He could have compelled the company to pay the cost of rebuilding it. But instead of doing so he chose to allow the company to put up the wing fences, and he has relied upon them to enclose his field, and has by his acts and conduct adopted them as a part of his fence. Teery v. Railroad Co., 22 Barb. 574.
    At the time the animals escaped, the duty of maintaining the fence at the place where they escaped, was upon Heiskell, and not upon the company. Swan’s Treatise (10th ed.) 365; Act of March 25, 1859 (1 S. & O. 331); Act of April 26, 1871 (68 Ohio Laws 78); Railroad v. Sloan, 27 Ohio St. 341;
      Poler v. Railroad Co., 16 N. Y. 476; Jones v. Railway Co., (Wis.) 5 Central L. J. 292; 2 Cush. 536.
    If this be so, then Heiskell was not entitled to recover unless the injury to the animals is shown to have been intentional, or the result of gross carelessness on the part of the agents and servants of the company in the running of the trains. P. C. & St. L. Ry. Co. v. Smith, 26 Ohio St. 124; Philps v. Cousins, 29 Ohio St. 135; Railroad Co. v. Waterson, 4 Ohio St. 424.

      Geo. Lincoln and Keifer & White, for defendant in error :
    Conceding that Heiskell was originally bound to maintain the fence at this point by his contract, the railroad company might excuse him therefrom, either by an express release or by acts equivalent to such release. Its acts operated to do so.
    Again, the railroad company was in duty bound to repair the damage done ; it elected to do so by assuming Heiskell’s obligations, and substituting their fences for his. 3 Hall, 215; 33 Ill. 308; 38 Ill. 230; Bigelow on Estoppel, 475; 5 Denio, 157; 8 Am. L. Reg. (N. S.) 665.
    The statute (S. & C. 331) imposed upon the railroad company the obligation of maintaining the fence, from which it had relieved itself by its contract with Heiskell, but not as to strangers. Gill v. A. & G. W. Ry. Co., 27 Ohio St. 240; Warner v. Railroad Co., 31 Ohio St. 265. When, however, it released Heiskell from the burden thereof by removing his fence and flood-gate and guarding the opening thereby made and immediately thereafter constructing the wing fences on its own land, the statute cast this duty upon it, not only as to strangers, but also as to Heiskell; and for its failure to perform such duty made it liable for “ all damages that may result to . . . domestic animals by reason of the want or insufficiency of the fences.” Railroad Co. v. Methuen, 21 Ohio St. 586; Railroad Co. v. Stephenson, 24 Ohio St. 48. Heiskell was not called upon to do the vain thing of keeping up his fence and flood-gate straight across the river. The wing fences constructed by the railroad company, while good and sufficient, protected his pasture land from the railroad track as effectually as two or more fences at that place could have done. Haxton v. P. C. & St. L. R. R. Co., 26 Ohio St. 214; Swan Tr. (11 ed.) 373. If this railroad at the place where the injury occurred, was improperly fenced, as counsel for plaintiff in error insist, then it was the duty of the railroad to have exercised a higher degree of care in running its trains. Kerwhacker v. Railroad Co., 3 Ohio St. 172; Gill v. Railway Co., 27 Id. 248; M. & C. R. R. Co. v. Stephen, 24 Id. 48; Swan Tr. 373. If the fence through which the horses escaped onto the track was in fact insufficient, and Heiskell knew it at the time he put the horses into the pasture, and they escaped on to the track by reason of such insufficiency, and were there killed by the gross negligence of the employees of the railroad company, Heiskell may recover. Brown v. Railroad Co., 11 Am. Rep. 424; Railroad Co. v. State, 35 Md. 366, and cases above cited.
   MoIlvaine, J.

The controlling facts in this case were so clearly proved by the testimony, all of which is set out in the record, that the principal question before us is, whether or not the verdict was contrary to law.

The facts may be stated thus: Previous to the year 1853, the Columbus and Xenia Railroad was constructed, from east to west, through plaintiff’s farm, and, within its limits, across the Little Miami river on a wooden bridge, and on each side of the road a fence had been built by the plaintiff. On the 8th of November, 1853, that company and the plaintiff entered into the following agreement in writing, to wit:

“ In consideration of $141.87 paid me by the Columbus and Xenia Railroad Co. for one-half of the division-fence built by me along the line of the said road through my land, I bind myself and assigns to keep up forever one-half of said division fence; the said company to have the right to select which side they will take in the above purchase. The other side to be kept up by me as aforesaid. I also bind myself to make a satisfactory conveyance of the right-of-way one hundred feet wide through my said land, which lies west of South Charleston in Clarke county, adjoining Webster’s land on the west.”
“Nov. 8, 1853
[Signed] Daniel O. Heiskell.”

By this agreement, and the selection thereunder, the plaintiff became bound to maintain the fence on the south side of the road, and the company, the fence on the north side. Such was the relation of the parties when the Columbus and Xenia company leased its road to the defendant, and the same relation between the plaintiff and defendant was afterwards recognized and acted upon without question or interference in any manner until the year 1863, when defendant reconstructed the bridge over the river, by substituting iron for wood, and in so doing, for convenience sake, removed about eighty feet of plaintiff’s rail fence on the south side of the road, including the part extending across the river. After the rebuilding was completed, the defendant, instead of restoring the portion of the rail fence which had been removed, constructed wing fences of posts and boards from the abutments of the bridge, on each side of the river, to the contiguous ends of the rail fence, thus completing the separation of the defendant’s track from the adjacent pasture lands of the plaintiff, by a good and sufficient fence. This change and substitution by the defendant was acquiesced in and adopted by the plaintiff, by the construction of flood gates across the river between the abutments, thus completing a continuous line enclosing his pasture lands on the south side of the road.

These wing fences, without any further express agreement between the parties, continued to be used as parts of the division fence between the railroad and the plaintiff’s lands, until the happening of the grievances herein complained of on the 25th of April, 1875. During this period these wings had been repaired on several occasions by the defendant, and on one or more occasions by the plaintiff. On the 25th of April, 1875, the wing fence on the west side of the river was insufficient for want of repairs, for the purpose of turning stock, a fact then known to the plaintiff, by reason whereof tbe plaintiff’s stock escaped from the adjoining pasture and went upon the railroad track, where they were killed by passing trains.

The testimony does not show any negligence on the part of the defendant in the management of the trains at the time of the injury; but, rather, that they were being run with ordinary aud reasonable care.

Upon the foregoing state of facts, we think the verdict should have been for the defendant, and on the trial below tile court charged the jury to the same effect.

There is no room for dispute, that, as between these parties, previous to the year 1863, the plaintiff was bound to maintain and keep in repair the entire line of fence on the south side of the railroad, so far as the same was located through his lands.

We concede, that in 1863, when the railroad company removed a part of this line near the river, for its own convenience in rebuilding the bridge, the plaintiff was thereby released from its duty to the defendant in respect to the portion of fence so removed, until the same was restored by the defendant. But when restored the conventional rights and duties of the parties again attached.

It is claimed, however, that the part of the fence removed, was not restored. Strictly, this claim is true. The rail fence was not rebuilt, nor was any substitute placed on the same site. But a post and board fence was constructed from the abutments of the bridge and connected with the ends of the rail fence which had not been removed, as a substitute for the part removed. True, the plaintiff might have objected to the substitute ; but he did not. On the other hand, he accepted it and adopted it as a part of the division line of fence between the parties. By so doing, we think, the duty to keep the substituted part in repair attached to the plaintiff under the former convention of the parties. Such was the instruction given to the jury by the court below, and we can see no error in it. But, if there were doubt on this point, it is perfectly clear, that by the use and adoption of this new line by the plaintiff as a means of inclosing his adjacent fields, the same became a division fence between the parties, and the duty of keeping it in repair devolved upon both parties; and each was guilty of negligence in' suffering it to be out of repair. Bences between railroads and other improved lands are put on the same footing with other partition fences (Act of 1859, § 3, S. & C. 332), and such partition fences are kept in repair by adjoining owners (Act of 1840, § 2, S. & C. 649). So that in either view, the plaintiff, having failed to beep this fence in repair, and having permitted his stock to escape through the same, knowing it to be insufficient, whereby they were killed by passing trains, should not have recovered for the injury to which he thus contributed, without proof of negligence on the part of defendant in the management of its trains.

On the question of negligence in the management of the trains at the time the plaintiff’s stock was killed, in view of the ruling in Railroad Co. v. McMillen, 37 Ohio St. 554, we are clearly satisfied that the judgment in favor of the plaintiff cannot be sustained on this ground.

Judgment reversed and cause remanded.


text:
    Insurance Co. v. Sampson.
    1. Wliere an order confirming a sale, made under a decree of foreclosure, to a mortgagee wlio is a party, is at the same term vacated and the sale set aside for want of notice as required by statute, the insurable interest of the mortgagor in possession is the same in the property as if such sale and confirmation had not been made.
    2. Where a loss of property covered by insurance in favor of the mortgagor, occurs after such confirmation and before the order was vacated and the sale was set aside, the insurable interest, which the mortgagor in possession had, was not divested by such unauthorized sale and confirmation.
    Error to the District Court of Champaign county.
    William Sampson brought an action against The Richland County Mutual Insurance Company, the plaintiff in error, on a policy of fire insurance, on his dwelling-house and shop situate on a certain lot of land.
    The policy was issued March 28, 1872, and by its terms expired March 28, 1877. The premium was paid in advance for the entire term of five years. A total loss of the buildings insured occurred February 14, 1877. This loss exceeded the amount of insurance. The policy contained no provisions against alienation. The right of the assured, to recover depends on the question, had he an insurable interest in the property at the time of the loss ? Thé defendant claimed that he had not, and that such interest was divested by the judicial sale, made January 27, 1877, and a confirmation of that sale, February 13, 1877, the day before the loss. The plaintiff claims that he had, for the reason, that though such a sale was made and confirmed, yet, afterwards and at the same term of court, the sale and confirmation were set aside, and a resale made and confirmed.
    During the trial, the defendant offered in evidence the record and proceedings of the court, showing that one Frank Houston, a mortgagee of the property insured, had commenced an action against Sampson and wife, to foreclose his mortgage, making one Lemuel Weaver, the owner of a second mortgage, a defendant.
    Weaver answered setting up his mortgage, and such proceedings were had, that at the November term of the court, a. d. 1876, there was a finding of the amount due on each mortgage, and an order of sale to pay the same, on default of plaintiff for five days to pay the same, and in case of sale the sheriff was ordered to bring the proceeds into court to abide its order.
    At the February term, 1877, to wit, February 13, 1877, the sheriff reported a sale made January 27, 1877, to said Weaver, which was, on motion of Houston’s attorney, referred to a master commissioner for examination as to all matters relating to confirmation. The master submitted a report to the effect, that the proceedings and sale were regular, and in conformity to law. Thereupon the sale was confirmed, and the sheriff was ordered to make a deed to the purchaser. At the same time, the purchase money was ordered to be applied : 1st, to the payment of costs; 2nd, to the payment of taxes ; 3d, to satisfy Houston’s mortgage, and the balance to be applied, as far as it would go, upon Weaver’s mortgage.
    Afterwards, at the same term of court, March 15, 1877, the following order was made: “ On motion to the court, the entry heretofore made at this term of the court, confirming the sale of the premises, is set aside, and 'this cause is opened up, and it appearing to the court that the property had not been advertised for thirty days before the sale, and on motion to the court, it is ordered by the court that the sale in this cause be set aside, and by like order, the entry confirming said sale is vacated, and held for naught, and at the costs of plaintiff, and this cause is continued.”
    The property on which the buildings had been situated, was again sold, under the decree of foreclosure, to Happersett 6 Hovey, and at the May term 1877, this sale was confirmed. Until after this last sale was confirmed, the mortgagor, defendant in error, remained in possession. It does not appear, that "Weaver, the first purchaser, had paid any part of liis bill, or had made any application of the balance of his bid to his own claim, as directed by the order of February 13. No deed was made under the first sale to Weaver, nor was he ever in possession. At the close of the trial to a jury, the. plaintiff in error requested the court to charge, as law, that a decree of foreclosure of a mortgage, and an order of sale, and a confirmation of the sale by the court, although set aside at the same term of the court, was such an alienation of the property as to avoid the policy, which the court refused, but did charge, that the minutes and journal entries of the court, were subject to be corrected, modified or vacated by the order of the court at the same term, and that the effect of these proceedings was as if no such sale and confirmation had been made. Under these instructions there was a verdict and judgment for plaintiff, which was affirmed by the district court.
    The errors assigned arise upon the charge of the court and its refusal to charge as appeal’s in the foregoing statement.

      Jemier & Tracy, for the plaintiff in error,
    cited, Ohio St. 347, 565; 12 Allen, 384, 385; Rorer Jud. Sales, 213, § 580; 7 Pick. 554; 17 Ill. 156; Wood on Ins. 540, § 312.

      Geiger <& Russell, for defendant in error,
    6 Ohio, 34; 20 Ohio, 131; 3 Ohio St. 447; 2 Ohio St. 474; Rorer on Jud. Sales, 46, 49, 56, 57; 10 Ohio St. 565; 51 Pa. St. 61.
   Johnson, J.

If Sampson had an insurable interest in the property at the time of the loss, he was entitled to recover. The quantity of that interest is not material, if it was substantial and valuable. If his relations to the property were such as that he would derive pecuniary value from its preservation, he has such interest. May on Insurance, chap. 4; "Wood on Insurance, chap. 8.

It must be conceded, that, as mortgagor in possession, the decree of foreclosure and order of sale, did not divest him of his insurable interest, neither did the unauthorized sale, for until the payment of the purchase money, and the order of confirmation of an authorized sale, he still might redeem if the order was reversed or set aside. Borer on Jud. Sales, §§ 128, 129.

The sale was confirmed February 13, the loss happened February 14, the order of confirmation was vacated March 15. and the property was subsequently sold and conveyed to a stranger, to whom possession was surrendered by the mortgagor. That the court had the power for sufficient cause to make the order of March 15, cannot now be controverted. The effect of this order was to decide that the property had not been regularly sold as authorized by law, and such was the fact. When the former order confirming the sale had been vacated, and the sale to Weaver, one of the mortgagees, set aside, in due course of law, the parties stood as if no sale had ever been made. This principle is settled by McBain v. McBain, 15 Ohio St. 337, where it was held, that where an order confirming a sale to a party is reversed, after a sheriff’s deed has been executed and delivered, the title, if any, of the purchaser is divested by the order of reversal. It is there said, “ that the confirmation having been reversed and set aside it becomes a nullity, and the case stands, at least as to parties, as though no confirmation had ever been made.” A fortiori, the result must be the same in the case at bar, when the court at the same term, and for a reason that would warrant a reversal on error, vacates its own order, and sets the sale aside.

In such a case the mortgagor is entitled to redeem, until . the property is again regularly sold, and his interest thereby divested. Hubbell v. Broadwell, 8 Ohio, 120.

In a case of a sale of property to a stranger, a subsequent reversal of the judgment does not divest the purchaser’s title. Rev. Stat. § 5409. But this statutory rule, which applies only to purchases by strangers, when the judgment is reversed, does not apply to a mortgagee who is a party, nor where the order of sale or confirmation is reversed. In such cases, the rule is as stated in McBain’s case. Whether in the present case the result would be different if the purchaser was a stranger, was discussed in McBain’s case, but need not now be considered. Much reliance is, by the plaintiff in error, placed on the case of Mt. Vernon Man. Co. v. The Summit Co. Mut. F. Ins. Co., 10 Ohio St. 347. In that case there was no question as to the power of the court to vacate its own orders improperly made at the same term of court. Certain chattel property had been purchased by a mortgagee in possession, and an order applying the proceeds to the debt secured had been made. Subsequently, the property, while in the purchaser’s possession, was destroyed by fire. At the next term of the court, by consent of parties, the sale and confirma-tion was set aside. It was held, that as no order of confirmation was necessary of the personalty, and as the purchaser had been in possession several months, the order setting the sale aside could not divest the purchaser’s title. The right of the insurance company as against the mortgagor had been fixed by the sale to the mortgagee, and the action of the court could not restore the policy to its original vigor, so as to cover a loss, for which it was not liable when the loss occurred. We are not inclined to carry the principle of that case beyond the facts there stated. The distinction between the two cases is radical. In that, there was a regular sale, which passed the title without confirmation. In this, the sale was unauthorized, and subject to reversal on error, or to be set aside by the court in a proper proceeding. In- that, the consent of all the parties could not divest the purchaser of his title, arid re-invest the mortgagor with an insurable interest, which had passed from him by the sale. In this, the sale, being invalid, passed no title, and was subject to be set aside or reversed on error at the instance of the mortgagor. In that, there was a valid sale, by which the property passed to the purchaser; while in this, it did not, as the proceedings were annulled by proper authority. We therefore hold, that on the facts of this case, the order of confirmation and sale was properly set aside, and that the mortgagor in possession was not, by such sale and confirmation, divested of his insurable interest in the property.

Judgment affirmed.


author: Longworth, J.

text:
    Martin v. Lapham.
    In one clause of a will testator bequeathed to M. L., a married woman, living with her husband, a specified sum of money. In a subsequent clause he provided that if M. L. should die, leaving no child of her own, then the money should be equally divided among the testator’s living children, the issue of his own body. Upon final settlement of the estate the executor had sufficient funds to pay all the legacies. In an action brought by the children of testator to enjoin the payment by the executor to M. L. of the amount of her legacy, for which she had recovered judgment against him, unless she should give security for the re-payment thereof to the then living children of testator in the event that she should die leaving no children of her own, — Held: 1. That, under the will, M. L. is entitled to the' possession of the legacy, without giving security for the re-payment thereof, in the absence of facts showing that she is about to waste or squander the legacy. 2. Such inference will not arise from the mere fact that she and her husband are residents of another state, and are pecuniarily irresponsible. (Lapham v. Martin, 33 Ohio St. 99, followed and approved.)

      Error to the District Court of Marion county.
    Robert Martin died in 1868, leaving a will which contained the following bequest, to wit:
    ' “ I give and bequeath to Mary L. Lapham, wife of Orson Lapham and daughter of Lavinia Williams, formerly Lavinia Green, the sum of $600. The said Mary L. Lapham was raised in my family, has always been dutiful and kind to me, and I hereby recognize her as a grand-daughter.” ....
    “ It is my will that if Mary L. Lapham shall die leaving no child of her own, then, and in that case, the sum of $600 bequeathed to her herein, shall be equally divided among my living children, the issue of my own body.”
    All debts and other claims against the estate having been paid in full, Mary L. Lapham brought suit against the executors to recover her legacy. It was claimed by the defendant in that action, that the bequest was not absolute but conditional, and that the condition had not transpired; that the plaintiff was not entitled to receive the principal sum of $600, but only the interest thereon during her life. It was finally decided in that cause by the supreme court commission, that, as the bequest over*was upon certain contingencies which might never happen, viz: the death of Mary L. Lapham leaving no child of her own, with living children of the testator surviving her, the children of the testator, if they took at all, did so by executory bequest, and not as legatees in remainder; that Mary took her legacy absolutely; and was entitled to the payment asked, and that no estate of any kind vested in the children of testator until the happening of the contingencies mentioned; and, lastly, that, if the limitation over was valid, the children, and not the executor, in the absence of a trust reposed in him, were the proper parties to a suit to protect their contingent interest, if any necessity for such action should arise. Lapham v. Martin, 33 Ohio St. 99.
    Thereupon the present action was begun by the children against Mary Lapham, in which they sought to enjoin the payment by the executor to her of the judgment recovered in the former suit, among other things, for the reason that Mrs. Lap-^ ham and her husband were insolvent and unable to respond for the repayment of the legacy, in case of the happening of the contingencies named, and that they were residents of the state of Illinois. They prayed that she be required to give security for the repayment of the legacy, and, in default thereof, that a trustee be appointed to hold, invest and manage the said sum and to pay her the income only, during life.
    A demurrer to the petition was sustained, and, the plaintiffs not asking to plead further, judgment was rendered for the defendant, and, upon proceedings in error in the district court, that judgment was affirmed. This latter judgment is now before us for review.

      W. B. Dmis, for plaintiff in error :
    The questions of law to be settled in this case are:
    1. Is the limitation over valid, or is it repugnant to the bequest in the first clause ?
    2. If the limitation over is valid, are the children of the testator entitled, upon the facts stated in their petition, to have security for repayment of the legacy upon the happening of the divesting contingency ?
    As to repugnancy:
    If it be once clearly established that Mrs. Lapham has an unlimited and unqualified right to the money bequeathed, then the limitation over must be rejected as repugnant. But the very question here is whether the will does give such an unqualified right. It will not do to assume that the bequest contains the intention of the testator and then reject the other clause in the same will because it qualifies the bequest. The whole will is to be construed together, and no part of it can be rejected, unless there appears to be such a total and irreconcilable repugnancy, that no legal, consistent and reasonable construction can be found to give effect to all the provisions. Pruden v. Pruden, 14 Ohio St. 257; Baxter v. Bowyer, 19 Ohio St. 490; 1 Redf. on Wills, 680, 681, § 23; Ib. 449, 451, §§ 13, 14.
    lt must be assumed that a testator means something by everything he says, and if the second clause of this will means anything, it is a limitation upon the gift in the first, clause.
    It is next to impossible to believe that if the testator meant to give to Mary L. Lapham and her heirs an unlimited estate, he would, nevertheless, have dictated this limitation, or that he would not at once see that he was restricting an absolute estate by this second clause.

      Tyson v. Blake, 22 N. Y. 563, is precisely in point. The limitation over is not of so much of the money as may remain undisposed of upon the contingency named, but of the entire $600; and the right of disposing of or consuming the fund is, therefore, inconsistent with the limitation. But upon the construction in Tyson v. Blake, the whole will is consistent.
    As to limitations in bequests of personalty, see 2 Redf. on Wills, 654, and notes 39,40; 2 Kent Comm. 352. The limitation was not void for remoteness. Parrish’s Heirs v. Ferris, 6 Ohio St. 563; Taylor v. Foster, 17 Ohio 166; 1 P. Wms. 663; 3 Ib. 262; 3 Paige Ch. 30. Security for repayment should be given. 2 Story Eq. §§ 603, 604, 845, 845 a, 847 and note. Fiske v. Cobb, 6 Gray, 144; Clark v. Terry, 34 Conn. 176; Williams v. Colter, 3 Jones Eq. (N. C.) 395; Tyson v. Blake, 22 N. Y. 563; Rowe v. White, 1 Greene (N. J.) 411; Howard v. Howard, Ib. 486; 2 Kent Comm. 352-354.

      H. T. Van Fleet, for defendant in error:
    The limitation over was void for remoteness and uncertainty. Niles v. Gray, 12 Ohio St. 320; Piatt v. Sinton, 37 Ohio St. 353. The case of Lapham v. Martin, 33 Ohio St. 99, is decisive of this.
   Longworth, J.

With the decision of the commission in the former case of Lapham v. Martm, we are entirely satisfied. It has long been settled law in Ohio that limitations over of persona] property, by way of executory bequest, are valid, and have like effect and operation as in the case of executory devises of realty. And since the decision in Niles v. Gray, 12 Ohio St. 320, followed and affirmed in Piatt v. Sinton, 37 Ohio St. 353, it cannot be doubted but that a devise or legacy, with such limitations as are contained in the will before us, operates to pass to the devisee or legatee an absolute estate in fee determinable only upon the happening of the contingencies provided for. It results from this that Mrs. Lapham owns her legacy of $600, and is entitled to the possession of it. To give her the interest only upon that sum, or the sum itself, only upon conditions not made by the testator, would be to refuse effect to his expressed intention in the will.

These plaintiffs have no vested interest whatever in this legacy, nor is it by any means certain that they ever will acquire such interest. Possibly there- may occur a contingency under which .they may become entitled to the legacy in the future, but such contingency is, after all, only a possibility imposed upon a possibility.

We do not deny that equity will protect this right, shadowy though it be, and will not permit the legatee to be guilty of waste or other acts which might operate to defraud the plaintiffs. But no such thing is alleged against her here. It surely does not follow from the fact that she is insolvent, and a resident of another state, that, therefore, she is about to waste or squander her legacy.

Perhaps in the case of a man or unmarried woman the fact of insolvency might lead to the inference that a receipt of such a legacy would be but a gift of it to creditors ; but here the charge of insolvency against Mrs. Lapham can mean nothing more than that she is pecuniarily irresponsible. Insolvency properly means inability to pay debts. It would be absurd to charge this against a married woman who cannot contract debts which she is unable to pay; seeing that it is only to the extent that she owns separate property that claims against her can be of any validity.

I may be permitted to suggest that possibly the true construction of this will is that Mrs. Lapham'should take her legacy absolutely unless in the event that she should die childless before the time of final distribution, in which case only should the children of testator receive it. I confess that I should myself be inclined to regard this construction as extremely plausible were it not for the language of Lapham v. Martin, above cited. The view, however, which we have all taken of this ease renders the discussion of this unnecessary.

Judgment affirmed.

White, J., did not sit in this case.