author: Follett, J.

text:
    Albright v. Payne.

      Construction of statute — Punctuation—Rev. Stats., sec. 4207 — Parol evidence to prove existence of pound for animals.

    1. In construing a statute, punctuation may aid, but does not control unless other means fail; and in rendering the meaning of a statute, punctuation may be changed or disregarded.
    2. In section 4207 of the Revised Statutes, that provides for impounding animals running at large, the vroiifort/iwith, in its meaning and force, is not separated by the comma from the words that follow it; and the meaning is as though written — forthwith giving notice thereof.
    3. On the trial in replevin for animals impounded, where there is no record of the action of township trustees in procuring or constructing a pound, parol evidence may be given to show what such trustees did, and whether there be such a pound.
    Error to the District Court of Seneca county.
    On appeal to the court of common pleas, Jacob Al-bright, in his petition, complained of William J. Payne as follows:
    “ That on the 10th day of February, a. d. 1880, he was and ever since has been the owner of and entitled to the possession of ten head of hogs, of the value of $40, and that the said defendant on or about that date unlawfully and willfully did take said hogs and confine them in a pen, being then unfit to suit hogs, in being too small, filthy, wet, and muddy, and did not properly feed and care for said hogs while they were in said pen, whereby said hogs were then and there damaged to the amount of $25.
    “ The plaintiff further says that the defendant then lived within one-half of a mile from him, and did then and there well know that the said plaintiff was the owner of said hogs, and entitled to the possession of the same, yet wrongfully took and kept said hogs as aforesaid for the space of five days, and until they were retaken in replevin in'this case; and did not give plaintiff’ notice of having taken or detained said hogs.
    “ The plaintiff also says the defendant had no right to take up and impound said hogs as thus done in said township of Adams, for the reason that there was then in said township a public pound, in which persons finding hogs and other domestic animals running at large in said township, contrary to the statutes of Ohio, had the right to impound the s.ame. •
    “ The plaintiff’ also says that defendant, while having possession of said hogs, did not advertise the same, nor give any notice to the clerk of said township of taking possession of said hogs; but did keep said hogs from said plaintiff for five days, as aforesaid. The possession of same was often demanded by plaintiff. '
    “ The plaintiff therefore prays that on final hearing of this case, said court will adjudge him to be the owner of said hogs, and entitled to possession of same while they were thus detained.
    “ The plaintiff also prays for judgment against said defendant for the sum of $25, his damages so as aforesaid sustained.”
    The answer of Payne says:
    “That he denies that the said plaintiff was entitled to the immediate possession of said ten head of hogs on the 10th day of February, 1880, or at the commencement of this action.
    “And he denies that the defendant then, or at any othei time, wrongfully or unlawfully detained the possession of said hogs.
    “And he denies that he confined said hogs in a pen that was unfit for such purposes, or that said pen was too small, filthy, wet, or muddy, or that the defendant neglected to properly feed or in any manner care for said hogs while they were detained and held in his possession; or that .said hogs, or any of them, were in any manner damaged in any sum whatever by reason of any fault or neglect of the defendant, or otherwise.
    “And he denies that he did not give plaintiff notice that said hogs had been taken up and were retained by him.
    “And he denies that there was then, or is now, within the said township of Adams, a public pound, or inclosure, in which persons finding hogs or other domestic animals running at large in said township contrary to the statutes of Ohio could impound the same, or that any such inclosure or pound was ever constructed or procured by the trustees of said township.”
    There was testimony before the jury that on Tuesday, February 10,1880, the swine in controversy were running at large with the knowledge and permission of plaintiff', when they went into defendant’s yard where the gate was open, and that they had done no damage, when the defendant, knowing they belonged to plaintiff', shut them up in a pen where he kept them until they were replevied; that plaintiff’s residence was about one-half mile from that of the defendant; that on the evening of Februai'y 12th, defendant’s wife told plaintiff’s son that defendant had taken up plaintiff’s hogs; that the following morning plaintiff sent his son to get the swine, and the son demanded them, but defendant refused to deliver them until he was paid $7 — $5 for taking them up and $2 for keeping them ; that on Monday, February 16th, defendant told plaintiff he had plaintiff’s swine shut up, and-if plaintiff paid the damages he could have them; that on the same day they were taken from defendant by the constable upon a writ of replevin, and that no other notice of taking them up was given by defendant. Also on the trial, plaintiff called as a witness one John S. Myers, and asked him the following:

      Question. — “ State what you know about the trustees of Adams township having contributed money toward the erection or establishment of a public pound?”
    "Which question being objected to, the plaintiff stated that he desired to prove by the witness that the trustees of Adams township and the authorities of the village of Green Springs had each contributed money toward the erection of a pound, to be used in common both by the township and village; that out of money so contributed by the village and township, a pound for the use of the' village and township had been in fact constructed. But that no record appears or was ever made upon the township books of the transaction; that there is nothing upon the records of said township in reference to the subject of a township pound, or the establishment or construction thereof.
    Which testimony so offered, being objected to,was excluded by the court, and the plaintiff excepted.
    And thereupon the plaintiff rested his case, and no other evidence was given by either of the parties thereto.
    Whereupon the defendant moved the court to instruct the jury to return a verdict against the plaintiff and for the defendant, which instruction the court then gave to the jury, and to which the plaintiff then excepted.
    Whereupon the jury returned their verdict for the defendant.
    The plaintiff then filed his motion to set aside the verdict and grant him a new trial for reasons iu the motion stated, which motion the court overruled and gave judgment upon the verdict against the plaintiff and in favor of the defendant for one cent.
    To all of which rulings, instructions, verdict, refusing a new trial and overruling the motion therefor, and the judgment so rendered upon the verdict, the plaintiff then excepted, and took and filed his bill of exceptions. On petition in error the District Court affirmed the judgment, and plaintiff in error seeks a reversal of the judgments.

      Seney ‡ Schaufelberger and Henry J. Weller, for plaintiff in error.

      Lutes $ Lutes and J. H. Bidgely, for defendant in error.
   Follett, J.

When we understand the object of the statute relating to animals running at large, the practical application of its various provisions is not difficult. The end sought is not to furnish means for personal spite, but is to prevent damage being done by such animals. The provisions of the statute will secure the safety of the animals, and will prevent damage being done by them. The statute provides that the person or officer, who acts in the matter, shall be compensated for his labor and care and food furnished, and that all shall be paid for by the owner of the animals, or by those having the care of them ; but such person or officer should act in good faith and must follow the strict provisions of the statute. Some of these provisions are as follows :

Revised Statutes, section 4202. “No person or corporation, being the owner or having the charge of any.horses, mules, cattle, sheep, goats, swine, or geese, shall suffer them to run at large,” etc.

Section 4207. “A person finding an animal mentioned in section 4202, at large, contrary to the provisions of this chapter may, and any constable of any township, or marshal or constable of any city or village, on view or information, shall take up and confine the same forthwith, giving notice thereof to the owner, if known, and, if not known, by posting notices describing such animals therein, in at least three public places within the township;” etc.

Section 4208 provides as to fees to be paid by the owner.

■Section 4209. “The trustees of any township may procure or construct an inclosure or pound, wherein animals taken up under the provisions of this chapter maybe confined ; and the trustees may appropriate from the township funds an amount not exceeding one hundred dollars for that purpose. If the trustees of any township fail to build or erect such pound or inclosure, any owner or lessee of land in the township where the stock is found running at large, contrary to law, may detain or keep the same in any field, pen, or stable, which shall be the same in effect as though the stock were impounded in a pound erected by the township trustees, but no stock running at large, contrary to law, shall be taken up and confined in any private inclosure where township pounds have been provided according to law.”

The pleadings, though not in the best form, show that plaintiff owned the swine, and that defendant held them shut up in a private pen five days, and until plaintiff replevied them. The ownership being in the plaintiff, the possession by defendant should be accounted for. Plaintiff avers that such possession was illegal. He admits that he did suffer the swine to run at large, but he claims that if defendant found them running at large, he could not take them up and legally confine them in his private inclosure, because, if rightly taken up, a township pound had been provided wherein they should have been confined ; and that defendant not only put them into his private inclosure, but gave no notice thereof to plaintiff, the owner.

I. As to the notice, the statute provides, section 4207, “ A person finding an animal mentioned in section 4202 at large contrary to the provisions of this chapter may, and any constable . . . shall take, up and confine the same forthwith, giving notice thereof to the owner,” etc. The admissions and evidence show that defendant took up the swine on Tuesday, the 10th, and he gave no notice of same to plaintiff until Monday, the 16th ; that'plaintiff did not hear of this taking up until Friday, the 13th. But the defendant seeks to justify this delay, by the statute as punctuated ; as in the statute the comma is placed after the word “ forthwith,” and not before it. But this strict grammar would not justify Ms position even if we limit the word “ forthwith ” to the words, “ take up and confine the same;” for the word “giving” is present and not future in time; and the time when he did “take up and. confine the same,” is the time when the “ giving notice thereof to the owner,” should be done.

But such a limitation is not the legislative intent. Punctuation may aid in arriving at the nieaning of a statute, but does not control.

Ancient inscriptions and writings show that words were grouped together without break or punctuation mark, the location and form of the words being the only indications of the meaning. The use of spaces and marks was adopted very slowly, but mostly since the beginning of the sixteenth century.

In Barrow v. Wadkin, 24 Beav. 327, 330, it was said that, “It seems that in the Rolls of Parliament the words are never punctuated,” and that punctuation is not allowed to throw light on printed statutes in England. In Cushing v. Worrick, 9 Gray, 382, it was held that, “Punctuation is not to be regarded in construing a statute.” • Punctuation has not arrived at perfection anywhere ; but a better rule was laid down in Ewing v. Burnet, 11 Pet. 41, where it was said, “ Punctuation is a most fallible standard by which to interpret a writing; it may be resorted to when all other means fail; but the court will first take the instrument by its four corners, in order to ascertain its true meaning. If that is apparent on judicially inspecting it, the punctuation will not be suffered to change it.” Also in Gyger’s Estate, 65 Pa. St. 311, the court held: “ In construing a statute, the plain common-sense interpretation of the words should be adhered to, rather than to apply refined technical rules of grammar.” “ Punctuation in a statute should not rule.” In Pancoast v. Ruffin, 1 Ohio, 385, 386, the court say, “ Statutes should be so construed as to give effect to the intention of the legislature, and if possible, render every section and clause effectually operative.” Speaking of a construction claimed by a party, the court also say in this last case: “ This construction is founded upon a mere grammatical criticism, which is never received to change or control the intention of the legislature, where that intention is otherwise clearly expressed. Something may depend upon punctuation in the statute book, which may be incorrect, and ought never to vary the true sense.” And there they disregarded and left out a comma.

In Hamilton v. Steamboat Hamilton, 16 Ohio St. 428, 432, Day, J., says: “ Courts will, however, in the construction of statutes, for the purpose of arriving at the real meauing and intention of the law makers, disregard the punctuation, or repunctuate, if need be, to render the true meaning of the statnte.” And this is followed in Shriedley v. The State, 23 Ohio St. 140 ; and in Allen v. Russell, 39 Ohio St. 337, Okey, J., says: “ The courts will repunctuate if necessary to render the meaning clear.”

IT we remove the comma that stands after the word “ forthwith,” and disregard it, or place it before that word, the meaning is clear and entirely consistent with every part of this statute, and clearly shows the true intent applies forthwith to “ giving notice thereof to the owner.” This view is strengthened by a reference to Revised Statutes, section 6628, relating to strays; and to section 6638, relating to stallions. So the meaning of the sentence is as though written, take up and confine the same forthwith giving notice thereof, or take up and confine the same, forthwith giving notice thereof, etc.

"What the defendant did as to the notice were questions of fact; and the jury, under proper instructions, were the triers of such facts. Rev. Stats., sec. 5130.

In this case the court erred in not permitting the jury to pass on this issue. Hollenbeck v. McMahon, 28 Ohio St. 1; Acton v. Knowles, 14 Ohio St. 18.

II. As to the pound, the statute provides, Rev. Stats. § 4209, “no stock running at large, contrary to law, shall be taken up,"and confined in any private inclosure where township pounds have been provided according to law.”

Plaintiff in his petition averred there was then in that township a public pound: and defendant specifically denied that averment. On the trial plaintiff offered Myers as a witness, “ to prove by the witness that the trustees of Adams township and the authorities of the village of G-reen Springs had each contributed money toward the erection of a pound, to be used in common, both by the township and village; that out of money so contributed by the village and township, a pouncl for the village and township had been in fact constructed,” which testimony was excluded by the court. This was not an offer of testimony to contradict any record, but the offer of testimony as to a material fact at issue in the case. Had the records shown all that records could show in such a case, the testimony would be competent. But here the records seem to be silent as to this matter, and to what Myers knew about the facts he could testify. See Westerhaven v. Clive, 5 Ohio, 136. We ai’e not told why the corn! excluded the offered testimony, or why the court instructed the juiy to return a vei’dict against the plaintiff and for the defendant, except that the defendant objected to the testimony, and moved the court so to instruct the jury. In so ruling and instructing thex’e was error to the prejudice of the plaintiff.

Judgment reversed and cause remanded.


source: Caselaw Access Project

author: Johnson, J. Oicey, J.

license: Public Domain

text:
    The State ex rel. Otenberger v. Hawes.

      Bill of exceptions — Allowance after term. — Mandamus to compel judge to sign — Pleadings in mandamus construed as in other civil actions.

    1. If during the progress of a trial, or on the overruling of a motion for a new trial the party excepting to the rulings of the court consent that the case proceed without his bill of exceptions being first signed, he is entitled to the same right to have his bill allowed and signed within thirty days after the term, as he would have had during the progress of the trial, if such consent had not been given.
    2. In either case, if the exception is true, or if it be not true, then, after it has been corrected, a majority of the judges composing the court must allow and sign the same, and if they refuse to do so without sufficient cause, mandamus is tho proper remedy to compel such allowance and signature.
    3. "Where an alternative writ of mandamus commands a judge of an inferior court to allow and sign a certain bill of exceptions, filed with the petition in tho case, and averred to be true, and which was tendered to him in due time, or to show cause why he does not sign the same, and ho fails to answer, or answers and fails to show a sufficient causo, tho peremptory writ should command him to sign the particular bill named.
    4. Tho pleadings in mandamus have the same effect, and are to be construed as in civil actions (Itev. Stats., § 6751-2). Hence a material allegation in tho petition, that a certain bill filed with it is a true bill, and the alternative writ commands him to sign tho samo, or show cause why he does not, and by his answer he does not deny this material allegation, his failure is to bo treated as an admission of the fact, the samo as if admitted in express terms.

      6. If a judge of an inferior court, by his return to the alternative writ, alleges that the bill of exceptions is not true or shows other sufficient cause, a peremptory writ will not issue to interfere with his discretion in the premises, hut where it appears upon the issue joined, that tho act is purely ministerial in its character, the rule is otherwise.
    Mandamus.
    Petition. — “Tho said relator, 'William Otenberger, for petition, says that at the October term, a. d. 1884, of the court of common pleas of Greene county, Ohio, he was tried on an indictment charging him with murder in the second degree, and the jury in said case, at said term, returned a verdict against him of ‘guilty of murder in the second degree as charged in the indictment;’ that the said James E. Hawes is one of the duly elected and qualified judges of the common pleas court of the second judicial district of the state of Ohio, which second judicial district embraces and includes the court of common .pleas of said Greene county, Ohio ; that the said James E. Hawes, prior to the trial of said case, had duly qualified and entered upou the discharge of his duties as one of the judges of the said second judicial district, and in the- discharge of such duties presided as judge of the said court of common pleas during tho trial of said case; that during the progress of said trial the said relator took numerous exceptions to the rulings of the said James E. Hawes as such judge, but in order that the trial of said case might progress as rapidly as possible, consented that said exceptions might subsequently be reduced to writing, and allowed and signed by said James E. Hawes, as such judge, and by him ordered to be made a part of the record in said case ; and the said relator duly excepted to the overruling by said James E. Hawes of relator’s motion for a new trial in said case, and in manner aforesaid consented that said exception might subsequently be reduced to writing.
    “ The relator says that neither he nor either of his attorneys knew upon what day or date the said October term of said court would close; that the attorneys of relator, on the eighth day of Jannary,' 1885, learning for the first time that said term would shortly close, appeared, on said date, in open court, before the said James E. Hawes, and not yet having fully completed the relator’s bill of exceptions in said case, then and there desired and requested the said James E. Hawes as said judge to order the journal of the said term of said court to be kept open for a short time, not exceeding thirty days from the date of its adjournment, so that they, the said attorneys, might have time to finish and complete a true bill of exceptions in said case, and have the same allowed and signed by said James E. Hawes, and by him ordered to be made a part of the record in said case as of said term ; and the said James E. Hawes refused to make and would not make such order; afterward, and on the same day, to wit, January 8,1885, the said James E. Hawes as said judge caused said term of said court to be closed, and said court to be adjourned sine die.

    “Afterward, on the 12th day of January, 1885, the said attorneys óf relator, having finished and completed a true bill of exceptions in said case, which said true bill is herewith presented, tendered and presented the same to said James E. Hawes as said judge, and prayed the said James E. Hawes as such judge to allow and sign the same, and order the same to be made a part of the record in said case as of said October term of said court; and the said James E. Hawes, although not disputing or denying the truthfulness of said bill, would not allow and sign the same nor order the same to be made a part of the record in said case as of said October term, aud the said James E. Hawes would not examine said bill so tendered, to ascertain whether the same, in his opinion, was true or false, although requested so to do by said attorneys.

      “ Wherefore the relator prays that a writ of mandamus may issue to compel the said James E. Hawes as said judge to allow and sign said true bill of exceptions in said case and to order the same to be made a part of the record in said case as of said term, and for all proper relief.”
    This petition is duly verified. With this petition was . filed the bill of exceptions tendered to the defendant, and which he refused to examine or sign. Upon this petition an alternative writ of mandamus was ordered after due notice, and on the return day the following answer was filed as a return to the writ:
    Answer. — “ The defendant herein, James E. Hawes, for answer, says he admits he was and is the duly elected and qualified judge of said court of common pleas named in the petition. He also admits he presided at the said trial of said relator, aud that sundry exceptions were taken during said trial, but he denies that there was any motion, request, agreement, or understanding whatever that there should be any postponement in the matter of reducing said exceptions to writing or of drawing or presenting or allowing bills of exception. On the contrary, respondent says he has done what he could during the last five or six years to break up the lazy habit of postponing and neglecting the drawing of bills of exception till the last day in the afternoon, and, as Mr. Maxwell, the present attorney for Otenberger, well knows, insisted that such bills should be drawn as soon as the verdict is rendered.
    “ In the present instance there was no bill of exceptions, either true or false, drawn or presented to the trial judge at any time during the term at which said Otenberger was tried. The attorneys who tried the case, knowing, probably, there was no substantial error in the trial except those committed in favor of the accused, abandoned the case, or, at any rate, made no effort or motion toward preparing any bills of exception, and the respondent supposed none wore to be drawn or presented, till the last day of the trial term, when Maxwell, the present attorney, came rushing into court, nearly thirty days after the trial, and stated that a bill was being prepared that would be ready by the morrow, but he was informed that court would adjourn that day (only three days before the new term was tó begin), and that if his bill was presented before court adjourned it would be signed; all of which was not done.
    Mr. Maxwell was exceedingly anxious to have the minutes left open or to have the bill signed on the following day, saying that while he was not at all averring there was any error in the trial, or that Otenberger had not had a fair trial, yet he had a fee and contract to present the case to the supreme court, -which he could not make available unless he could get a bill of exceptions.
    “No bill was presented until the first day of the term following the trial term, thirty-five days after the trial. It professed to embody all the evidence of 200 witnesses or more (the relator had 150 subpoenaed on his side, as respondent is informed and believes), and respondent feeling entirely satisfied that relator had had a fair and impartial trial, refused to examine or sign it. There was also grave danger that if a new trial should bo granted and another indictment found for murder in the first degree, the verdict would be for that crime instead of murder in the second degree.
    “Eor these few reasons', and a great many others which it is needless to enumerate, respondent asks to be allowed to recover his costs and go hence without day.
    “ (Signed.) James E. Hawes.”
    This answer is not signed or sealed officially, nor is it verified as is required by the code.
    To-this answer, filed as -a return to the writ, the plaintiff demurred on the ground that it does not state facts sufficient to constitute a defense, or, in other words, does not show cause why a peremptory writ should not be awarded.

      G. L. Maxwell, for plaintiff.

      James Lawrence, for defendant.
   Johnson, J.

It appears from the petition that during the trial of relator for murder in the second degree, numerous exceptions were taken by him to the rulings of the court; that he consented to postpone reducing them to writing in order not to delay the trial, and that after the overruling of the motion for a new trial, he further excepted, and consented that his exceptions might subsequently be reduced to writing; that during the term, and on the day of its adjournment, his counsel not being able to complete his bill of exceptions, moved the court to keep the journal open for thirty days, to enable him to complete and have signed his bill of exceptions to the overruling of his motion for a new trial. This motion or request was refused.

This was on the 8th of January, and on the same day the court adjourned sine die. Oh the 12th of January, thereafter, his counsel presented the bill of exceptions, filed with the petition herein, and which is averred to be a true bill, to defendant as judge and asked him to allow, sign, and seal the-same, which he declined to do, though not disputing or denying its truthfulness. He refused to examine the same to ascertain whether it was true or not'. An alternative writ was issued, commanding him to sign said bill or show cause why he does not.

The answer admits there were sundry exceptions during the progress of the trial. He does not deny but that plaintiff consented to postpone, reducing these to writing after the-trial, but denies that there was any “ request, agreement, or understanding that there should be any postponement.” He makes no. denial of the averment that plaintiff consented to a delay in preparing a bill, on the overruling of the motion for a new trial, but says that during the last five years he has done what he could to break up the lazy habit” of postponing the drawing of such bills, and insisted on having them drawn as soon as the verdict is rendered.

He says no bill was presented to him during the term, and he supposed none would be presented until the last day of the term, when relator’s counsel appeared in court and informed it that the bill was being prepared, and would be ready the next day, and was told by the court that it would adjourn that day, and if presented before adjournment it would be signed, which was not done. The counsel also asked that the journal of the court be kept open for thirty days. This was n ot done. As a reason for this refusal he says the bill professed to set out all the evidence and he, feeling entirely satisfied that relator had hada fair and impartial trial, refused to examine or sign the bill. He adds that there was grave danger that if relator got a new trial and was indicted for murder in the first degree, he might be convicted of that instead of murder in the second degree, with which he then stood charged. To this answer the plaintiff filed a general demurrer.

These facts present for our consideration two questions. First, Shall a peremptory writ be awarded ? Second, If so, whether it should command the defendant to sign a bill of exceptions or the bill filed with the petition in this case.

1. Is the relator entitled to a peremptory writ?

This involves a construction of sections 5301 and 5302 of the Revised Statutes.

Section 5301 provides for taking exceptions to the rulings of the court during the progress of the trial, and to the overruling of a motion for a new tidal.

By section 5302 it is provided : “ If the exception be true, or, if it be not true, then after it is corrected, a majority of the judges composing the court must allow and sign it before the case proceeds, or, if the party consent, within thirty days after the term; . . . and if it is to be signed after the term of the journal' must be kept open and the allowance and signing thereof entered thereon as of the term.”

By the “party” who may consent to the extension for thirty days is meant the party who excepts.

This section of the statute is derived from section 4, as amended, of the act of April 12, 1858 (2 S. & C. 1155 to 1157), which provides that “it shall be the duty of the judge or judges ... if required by such party during’ the progess of the case, to sigu and seal a bill containing such exception-or exceptions, before the ease proceeds; or, if the party consents, the signing and sealing of such bill of exceptions may' be suspended until the trial is closed, bnt said bill of exceptions shall be signed and sealed during the term.”

This statute authorized the court, with the consent of the party excepting, to suspend preparation, allowance, and signing of the bill until the trial is closed, but required it should be allowed and signed during the term.

Whether prepared during the progress of the trial or afterward during the term, it was the imperative duty of the court, if the exception be true or if not true, after it is corrected, to allow and sign the same.

The effect of section 5302 is to extend the time for the performance of this duty thirty days after the term, with the consent of the exceptor.

The pleadings admit that the exceptor in this case consented and indeed had appealed to the court for this extension of thirty days, and that the journal might be kept open, but this was refused, and on the same day the court adjourned. It appears that exceptions were taken during the progress of the trial, and also after verdict, to the overruling of the motion for a new trial, and that the relator’s counsel, being unable to complete his bill of exceptions before the adjournment of the court, made this request in order that he might prosecute error to this court. This request was denied, because the judge wished to discourage the lazy habit of postponing the preparation of bills until the last day of the term. Afterward, and within four days, this bill of exceptions was prepared and presented for allowance and signature, but the judge refused to even read it or allow and .sign it, not however on the ground that it was not a true bill, but solely for the reason that he felt satisfied that the relator had a fair and impartial trial, and also thought there was grave danger, that if he obtained a new trial, he might be re-indicted for murder in the first degree, .and found guilty thereof.

We are all agreed that this answer was insufficient, and that the demurrer thereto must be sustained. We hold that the relator upon the facts stated had the same right to present his bill within the thirty days as he had during the term; and that it was the duty of the court if the bill be true, or if not, then after it is corrected, to allow and sign the same.

2. The relator then, being entitled to a peremptory writ, the question arises, shall it command the defendant to sign the bill of exceptions properly teudered to the defendant, which he refused to sign, or shall it command him to sign a bill, leaving to him a discretion to detetmine whether the bill presented is true or not?

The defendant has not asked to amend his answer, and if he did it would rest in the discretion of the court to allow it, and the case, therefore, stands as though no return had been made to the writ.

Section 6745 Revised Statutes provides that when the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a court may in the first instance grant peremptory mandmanus, but in all other cases the alternative writ must first be issued. By section 6746 it is provided that the allowance of the writ and an order when it is alternative, shall be that he do the act, or show cause why he does not do it, shall be entered on the journal.

By section 6748 it is made the duty of the defendant to show such cause, or he may demur to the petition.

If he answer, the plaintiff’ may demur or reply, and the defendant may demur to the reply as in a civil action. (Rev. Stats., § 6749.) If no answer be made a peremptory mandamus must be allowed against the defendant. (Rev. Stats., § 6750.) The pleadings shall have the same effect, and must be construed as in civil actions. (Rev. Stats., § 6751.)

It is clear that the ordinary rules of pleading prescribed in civil actions apply to proceedings in mandamus. If the petition states a case, and there is no ausvver showing cause why the writ should not be granted, the statute is imperative. “A peremptory mandamus must be allowed against the defendant;” so if an insufficient reason be given, the plaintiff may demur, and if his demurrer is well taken he is entitled to judgment, as in other civil actions for the relief prayed for, unless the answer be amended as in other civil actions.

We are unanimous in the opinion that the demurrer is well taken, and must be sustained. This leaves the petition without answer.

The defendant having failed to show cause why he should not sign the bill filed with the petition, as commanded, it would seem to follow as a necessary conclusion that the relator is entitled to judgment as prayed for.

The prayer is, “ to compel the said James E. Hawes, as said judge, to allow and sign said true bill of exceptions in said case,” etc.

The law commanded him to do this, or show cause why he did not. Having, as we are all agreed, shown no cause, the judgment should make the alternative writ absolute. It is said, however, that an inferior court will not be interfered with in the exercise of its discretion. That is true, and had the answer in this case averred that the bill presented was not true in fabt, no peremptory writ would issue to sign auy bill.

When by the case made by the parties, it appears that there is no judicial discretion to be exercised, the reason of the rule does not exist, and the rule ceases to apply.

This rule is.not specially applicable to inferior courts, but exteuds to all inferior boards or tribunals. Wherever by law the power to decide is vested in an inferior tribunal, that power will not be usurped or disturbed, but where'the alternative writ commands the doing of a specific act, such as in this case, to sign the bill of exceptions filed with the petition, and it is admitted by the answer, as it is here, to be true, and no sufficient reason is shown why it was not signed, the statute is imperative : “ If the exception is true . . . the court must allow and sign it.” (Rev. Stats., § 5302.) If the bill is true there is no discretion. The act to be done is purely ministerial, and all agree that in such a case the rule must be made absolute.

The only reason given for the refusal is that relator had had a fair trial, and there was danger that if he got a new trial he might be indicted and convicted of a higher degree of homicide. This is not a showing of sufficient cause for not signing the bill tendered, which by the rules of pleading he admits to be true. I understand my dissenting brethi’en concede that if the answer had expressly admitted this to be a true bill he should be commanded to sign it. By the settled rules of pleading, all material allegations of the petition not denied are, for the purposes of the case, admitted. In this respect there is no difference between an admission expressly made and one made by silence.

It is said, it does not appear, that he ever read the bill, and hence has not exercised the discretion vested in him. It appears he refused to examine or sign it within the proper time, before the alternative writ was awarded. This bill was on file with the petition when he answered. The writ commanded him to sign that particular bill, or show cause why he did not. We have no right to assume he did not read it before answering. The command of this court made it his duty as a public officer to answer with particularity. We can not assume he has been frivolously trifling with this court. He had ample opportunity to read this bill, and we can not assume that he has not done so. We must presume he has, in good faith, made all the answer within his power, which it was his sworn duty to do. It was the duty of defendant to make all his defenses in one answer, and to assume he has not read this bill is to impute to him either a want of legal knowledge or an indifference to the command of this court, which is not warranted. We have no reason to impute to him any other motive than to perform his whole duty.

Our statute makes no new rule of pleading or practice in mandamus proceedings. It is but the embodiment of the settled practice in force before the code of civil procedure adopted.

The authorities are all in support of the conclusion reached by the majority.

Thus, The People v. Pearson, 2 Scam. (Ill.) 189, was a mandamus to compel a judge to sign a “ certain bill of exceptions which was tendered to him on the trial.”

The judge had signed a bill with certain portions of the evidence stricken out, and this was a proceeding to compel him to sign another bill containing the evidence which he had stricken out. The judge made no return or answer to the alternative writ, nor did he return the writ itself, but by counsel appeared and filed an answer, which contested the power of the court over him. The court say'his answer is au insufficient compliance with the mandamus heretofore awarded (the alternative writ), and awarded a peremptory writ, “ directing the signing the bill of exceptions required by the first writ.” The court add that if the judge had been of the opinion that the bill was not true it would not interfere with the discretion of the judge in this respect. After pointing out the limits of this discretion, and showing that if the bill was true the act of allowing and signing was a mere ministerial act, it is said : “ In the absence of such a return (that is, one showing the existence of such a discretion), with such explanatory reasons for a refusal to sign the bill of exceptions required by the party, we are bound to award, a peremptory mandamus to cause the signing of the particular bill of exceptions exhibited.”

This ease, in another form, again came before the court in 3 Scam. 270, when the same ruling was reaffirmed.

In Page v. Clopton, Judge, 30 Grat. 417, 418, it is said if the relator’s right is clear, and he is without any other adequate remedy, the mandamus will be granted, but if it is doubtful or there is a discretion to be exercised, it will not. “ If the conditions of the statute are satisfied, the right of the party is clear, and the duty of the j udge equally clear, and it is imperative. He has no discretion in the matter.”

In Springer v. Peterson, 1 Blackf. 188, a mandamus was awarded to compel the associate, judges to sign a bill of exceptions, which had been signed by the president judge, or show cause,'*and no cause was shown, the court awarded a peremptory writ compelling them to sign the particular bill.

Douglas v. Loomis, Judge, 5 West Va. 542, is also directly in point, and it was held that the power exists to compel- a judge to sign a particular bill, which it is conceded by him to correctly state the facts.

The rule as there laid down is: “that the judge, in a case where the charge is that he refused to sign any bill, is commanded, in the conditional writ, to sign and seal the bill if it correctly sets forth the facts. But where the complaint is that he refused to sign a particular bill, ho is required to sign the bill, or show cause why he has not done so.”

The answer to a mandamus must respond to all the allegations in the writ, or it will bo held bad on demurrer. Gorgas v. Blackburn, 14 Ohio, 252.

And if a judge refuses to sign a bill of exceptions, he should make known the cause. State v. Judges, 1 West. Law J. 358-. While the mandatory part of the writ may bo very general, the return or answer must be very minute in showing why the party did not do what he was commanded to do. (Compton and Blackburn, JJ.) Regina v. The Commissioners, etc., 1 Best & Smith, 4.

So, a return to an alternative writ is insufficient which merely alleges that the. relator had no authority to compel the respondent to sign the bill, since he himself must be the judge of the correctness of the exceptions, if it fails to show that the bill as presenteddid not truly state the facts, or that the exception was not taken in the proper time and manner. Etheridge v. Hall, 7 Porter, (Ala.) 47; High Ex. Rem., sec. 210.

It is the duty of the respondent- to set forth in his return or answer the nature of his defense, either by denying the allegations of the writ or stating facts sufficient to defeat the relator’s right. It should contain positive allegations of fact, and not mere inferences from facts. Com. v. Commissioners, 37 Pa. St. 277.

By the ancient common law, the greatest rigor was applied in construing returns to alternative writs. The object of the pleadings was, as it still is, to produce a definite issue, and while the rigor of the ancient rule as to the return is relaxed under our code, the sufficiency of the return, and the judgment that follows upon the issue found, is the same now as then.

Seo High Ex. Rem., sections 457 to 487 for a fall discussion of this subject; also Chapter X of same volume.

Under the head of Pleadings in Mandamus in that work, this whole subject is fully discussed and the view of the majority fully sustained.

It is said that the peremptory writ should leave him the discretion to refuse to sign, this bill, if, upon examination, he found it not a true bill. This in legal effect would be but an alias alternative writ, a thing unheard of in practice. He was commanded to sign this bill or show cause. He shows no cause, though he had a day in court and filed an answer, which by the rules of pleading admits this to be a true bill.

A mandate now, upon this state of fact, simply to sign a bill of exceptions, leaving the judge, after he has had his day in court, to put up some new defense or give some new reason, would be an anomaly as a peremptory command. It would only be another command to do the act or again show cause.

Peremptory m'andamus awarded as prayed for.

Oicey, J.

The proper course is to require Judge Hawes to sign a true bill, and now that his error is pointed out, I am sure that he would promptly and willingly sign a true bill. To assume that he would not is to do him great injustice. From his answer it plainly appears, in my opinion, that he .has never read the bill which is here exhibited. To require him to sign it, under the circumstances, without affording him an opportunity to read it and point out any errors therein— his answer being held insufficient — is a wrong to him, and a greater wrong to the state, which ought not to incur the hazard of a new trial by reason of a bill of exceptions which may be an untrue bill, for a new trial with two hundred witnesses involves expense, and should never be granted, unless plainly in-furtherance of justice, or for the reason that some principle of law has been violated. No opportunity has been given to apply for leave to amend, for the order sustaining the demurrer and imperatively requiring the judge to sign the bill, are made at the same moment in absence of the defendant. Of course, we have not considered the bill of exceptions with a view to determine whether or not it shows that the court below erred. There is no decision, in my opinion, which sustains the judgment in this case.

McIlvaine, O. J., also dissented.


author: McIlvaine, C. J.

text:
    Ewing v. Toledo Savings Bank.

      Savings and loan associations — Usurious contract made out of state — Statutory sanction as to interest exclusive — Forfeiture of usurious interest a penalty — Contract for usurious interest not void in toto.

    1. A corporation organized under the act of February 26, 1873, entitled “An act to 'incorporate savings and loan associations,” as amended March 3, 1875, can not enforce, in this state, a usurious contract for the loan of money, to the extent of the usury stipulated for therein, although the contract was made in another state, where the laws authorize contracts for interest at the rate stipulated for in the contract sued on.
    2. A corporation can make no contracts, and do no acts, either within or without the state which creates it, except such as are authorized by its charter. Bank of Augusta v. Earle, 13 Peters, 519.
    3. Savings and loan associations organized under the act of February 26, 1873, as amended March 3, 1875, are authorized, on the loan of money; to contract for “interest at the rate allowed or that may be allowed by the laws of Ohio, and shall be subject for the violation thereof to the same penalties as natural persons.” Seld: 1. That the sanction named by the statute is exclusive. 2. The forfeiture of usurious interest must be regarded as a penalty. 3. That in contracting for usury in such case, the common law rule, that the contract, in toto, is void for want of power to make it, does not apply. Bank of Columbus v. Carling house, 22 Ohio St. 492, approved and followed.
    Error. Reserved in the District Court of Lucas county.
    The original action was brought by the Toledo Savings Bank and Trust Company, a corporation of the state of Ohio, organized under the act of February 26, 1878, entitled, “An act to incorporate savings and loan associations” as amended March 3, 1875, against Alexander H. Ewing and others, in the court of common pleas of Lucas county.
    The first cause of action stated in the petition was for the recovery of $10,000 and interest on .three promissory notes, payable in three, four, and five years from date, and dated February 5,1876.
    The following is a copy of the note payable in three years:
    “$3,333.00. Chicago, III., February 5, 1876.
    On or before three years after date, I promise to pay to the order of the Toledo Savings Bank and Trust Company three thousand three hundred and thirty-three dollars, with interest at ten (10) per cent, per annum, payable annually, at the First National Bank, Chicago, 111. Value received. ' Albs. H. Ewing.”
    The notes payable in four and five years are of like tenor and effect, except that the last note is for the payment of $3,334.00.
    ■ The second cause of action is to foreclose a mortgage on certain real estate situate in Lucas county, given on February 5, 1876, to secure the payment of the above described promissory notes.
    The mortgage contained the following stipulation :
    “ That if said Alexander IT. Ewing should fail to pay any of said notes, either principal or interest, within six months after the same becomes due, the whole sum of money herein secured may become due and payable at once, at the election of said mortgagee, its successors or assigns; and this mortgage may, thereupon, be foreclosed immediately for the whole of said money, interest, and costs.”
    The defendant, Alexander II. Ewing, among other things, by way of defense, alleged that said contract was usurious, and wholly void.
    It appears from the record that the notes and mortgage upon which suit was brought, were given for a loan of money, and although negotiations for the loan were made in Toledo, in the state of Ohio, where the plaintiff had its principal office, the notes and mortgage were in fact executed in the state of Illinois, by the laws of which state it is lawful to contract for interest at the rate of ten per. cent., as stipulated in said notes.
    In the court of common pleas judgment was rendered for the plaintiff for the full amount claimed. To reverse this-judgment a petition in error was filed in the district court, where the case was reserved for decision in this court.

      Haynes ‡ Potter, for plaintiff in error.
    The Trust Company had no authority to make the contract. Straus v. Ins. Co., 5 Ohio St. 59; Creed v. Bank, 11 Ohio, 489, 493; and the contract was ultra vires. Bank of Chillicothe v. Swayne, 8 Ohio, 257; Spalding v. Bank, 12 Ohio, 544; Miami Exporting Company v. Clark, 13 Ohio, 1; Bank v. Stevens, 1 Ohio St. 233 ; Preble Bank v. Russell, 1 Ohio St. 313; Vanatta v. State Bank, 9 Ohio St. 27 ; Union Bank v. Bell, 14 Ohio St. 200; Kilbreth v. Bates, 38 Ohio St. 187.
    Then the question arises at once, does the clause- in the act (72 Ohio L. 186, § 16), “ and shall be subject for the violations thereof to the same penalties as natural persons ” invest or confer the power and make valid a contract which it had no power to make.
    And unless this clause is to be given such construction and force (and which the Trust Company must claim for it), this case falls directly within the rule established by the cases cited above.
    1. We say the imposition of a fine or penalty never did and never can confer corporate power.
    2. As the law stood in this state at the time of the passage of this act and as it now is, there was and is no penalty imposed upon natural persons for violations of the usury law; neither to the borrower nor lender — hence no penalty upon the Trust Company.
    The term penalty as used in this statute must be construed to mean no more and no less than as it is used in its proper legal signification.
    There is no grant of power to the Trust Company to loan its money at a rate of interest in excess of the legal rate, but on the contrary such institutions are expressly prohibited from so doing. 1. S. & C. 149, section 3 of the act of March 19, 1850. ■
    By section 5 of the same act, 1 S. & C. 150, this contract of loan is declared usurious and unlawful.

    To hold as the bank people claim, is to permit it to make any contract it may see fit to make (perhaps taking advantage of necessities) as to the rate of interest, and then in any action to enforce the contract (if defense is made) it shall recover what in law it was permitted to contract for. If this is to be the holding, what penalty or forfeiture in law is imposed upon the Bank and Trust Company for violation of law? None whatever, for in law it loses and forfeits nothing.
    That the contract was made in another state where a rate of intei-est is allowed, in excess of the rate allowed in this state, does not deprive the contract of its usurious nature. Story on Conflict of Laws (7th ed.), §§293a, 293b.; Andrews v. Pond, 13 Peters, 65 (see opinion); Chapman v. Robertson, 6 Paige, 627; De Wolf v. Johnson, 10 Wheat. 367.

      T. J. McDonnell and B. § E. T. Waite, for defendant in error.
    The bank had authority to make the contract. If any illegality attended it, it was only as to the usurious interest. The case is not governed by Bank of Chillicothe v. Swayne, 8 Ohio, 257, and kindred cases, but is controlled by Bank v. Garlinghouse, 22 Ohio St. 492 ; Bank v. Slemmons, 34 Ohio St. 146; Kilbreth v. Bates, 38 Ohio St. 187; Ohio ex rel. v. Board of Education, 35 Ohio St. 525.

      The record shows that the notes and 'mortgage were all issued and the debt made payable at Chicago, where it was lawful to contract for interest at the rate of ten per cent, per annum; and that it was the intention of these parties to put themselves under and to contract with reference to the laws of Illinois. We submit that this .transaction was legal, and the stipulated rate of interest will be enforced by the courts of Ohio. And for authority we refer the court to Kilgore v. Dempsey, 25 Ohio St. 413; Scott v. Perlee, 4 Cin. Law Bull. 275 ; Hunt v. Jones, 19 Albany L. J. 387; Bank of Augusta v. Earle, 13 Pet. 519.
    The fact that the notes were made payable out of the state of Ohio can have no effect upon the rights of the defendant in error, for the act under which it is incorporated authorizes it to invest its funds in securities notoriously payable in money centers outside of the state.
   McIlvaine, C. J.

If the contract sued on had been made by a natural person, and in the ’state of Ohio, instead of a corporation, it would not be denied that under the laws of the state of Ohio it would be usurious, and that the plaintiff could recover thereon only the principal actually advanced, with interest at the rate of six per cent, per annum.

The plaintiff, however, being a corporation of this state, we must look to the general statute under which it was incorporated for its power to contract, and for the consequences which follow an abuse of its franchise in this respect.

Section 16 of the act of February 26, 1873, as amended March 3, 1875 (72 Ohio L. 186, § 16), provides: “ Such association may discount notes and bills of exchange, and may take, receive, reserve, and charge upon any loan or discount made upon note, bill of exchange, or other evidence of debt, interest at the rate allowed, or that may be allowed by the laws of Ohio, and shall be subject for the violation thereof to the same penalties as natural persons.”

It must be conceded that the rate of interest stipulated for in this contract exceeded the rate allowed by the laws of Ohio, and therefore it is contended that the contract is void in toto, for want of legal capacity in the corporation to make it. Bank of Chillicothe v. Swayne, 8 Ohio, 257. And subsequent cases approving the same doctrine are i’e-lied on as sustaining this proposition. We do not controvert the doctrine of the common law as laid down in these cases. But we. do claim that the legislature has ample power to change the rule, and where the statute has declared the consequences that follow a violation of chartered power, the statutory rule-must prevail, and the doctrine of Bank of Chillicothe v. Sioayne does not apply. See Bank of Columbus v. Garlinghouse, 22 Ohio St. 492. In the case before us the statute declares that savings and loan associations, for contracting for a greater rate of interest than is allowed by the laws of Ohio, “shall be subject to the same penalties as natural persons.” This rule of liability is exclusive.

But it is said that the laws of Ohio do not subject natural persons to any penalty for violating the usury laws of the state. This brings us to consider the meaning of the word “penalties” as used in this statute. It must be assumed that the general assembly was cognizant of the state of the law. It is true that no corporal punishment was inflicted in Ohio for usury. It is true also that usury in this state was not declared an offense for which punishment by fine was inflicted. But it is true, at the time this statute was passed, that bythe laws of Ohio a contract for usury could not be enforced to the extent of the usury. To that extent the contract was forfeited. This forfeiture was a penalty within the meaning of the statute. This construction is necessary to give the provision any operation at the time it was enacted, and we think it should be_ adopted.

Again, it is claimed by defendant in error, that the contract sued on was made in the state of Illinois, and that by the law of the place where it was made the rate of interest contracted- for was authorized. Heuco it is contended that th,e validity of the contract should be determined by the law of Illinois and not by the law of Ohio. If the contracting parties were natural persons, the rule thus contended for should, no doubt, prevail.

But the defendant in error, which contracted for interest at the rate of ten per cent, per annum in the state of Illinois, was an Ohio corporation, whose power to contract for interest was limited by its charter “ to the rate allowed by the laws of Ohio,” which was a less rate than that contracted for. In Bank of Augusta v. Earle, 13 Peters, 519, it was said: “It may be safely assumed that corporations can make no contract or do no act, either within or without the state that creates it, except such as are authorized by its charter.” The reasoning which leads to this conclusion is unanswerable, and need not be re-stated here, as the proposition is very plain.

We admit that by the rule of comity existing between states of this Union, it may be assumed that the existence of the plaintiff below as a corporation of the state of Ohio, with such powers as were conferred by its charter, was recognized by the state of Illinois, so that a contract which it might make, within its charter, would be valid, though made in another state. But this rule of comity does not extend so far as to legalize a contract in excess of its chartered privileges made by a foreign corporation in another state, although such contract be authorized by the state where made as a legitimate exercise of power by its own citizens, whether natural or incorporated.

Neither does this rule of comity exist in a state whose policy is violated by the exercise of powers conferred by the charter of a foreign corporation. In other words, powers conferred by a charter can not be exercised in a foreign state whose policy is thereby violated. So that, if it were shown that the laws of Illinois expressly authorized a foreign banking corporation to contract for interest at the rate of ten per cent, per annum, within the State of Illinois, the state of Ohio would not enforce a contract so made by one of its own corporations in violation of its policy as expressed in the charter of the corporation.

Judgment reversed for error in including usurious interest, and cause remanded to the common pleas court for further proceedings.


author: Johnson, J.

text:
    Page v. Thomas.

      Real estate bought with partnership funds, though held in individual names, partnership property — Liability for partnership debts — Judgment lien of separate creditor postponed to equity of firm creditor.

    1. Heal estate purchased with partnership funds and occupied and used by the firm in its business is partnership property, held in trust for partnership purposes, though the legal title is in the names of individual partners. \ j

      2. Such property is liable to the payment of firm liabilities incurred during the continuance of the partnership business, in preference to claims of separate creditors, except as to those of bona fide purchasers for value, without notice that the same was partnership property.
    3. The statutory lien of a judgment of a separate creditor, on lands so held, must be postponed to the equity of a firm creditor, whose claim accrued during the continuance of the partnership, although subsequent to the time that such statutory lien attached. Such lien is good to the extent only of the residuary interest of the partners in the land, after the satisfaction of all claims against the partnership.
    Error, to the District Court of Eranldin county.
    Eor many years prior and up to March 16, 1876, Benjamin E. Smith and John E. Bartlit were partners under the firm name of Bartlit & Smith, in the banldng business in Columbus. On that day Bartlit died testate, and D. S. Gray was qualified as his executor. On the 6th day of October, 1879, Thomas, the defendant in error, recovered a judgment against Smith and Gray, executor, in the court of common pleas of Eranldin county for over $11,000. The execution thereon was returned unsatisfied.
    Thereupon on the 1st of November, 1879, Thomas filed his petition in this case, seeking to subject the undivided two-thirds part of lot No. 243 in the city of Columbus to the satisfaction of said judgment. •
    He charges that although the legal title to said lot is iu one Henry Miller, yet he holds it in trust as part of the property of the late firm of Bartlit & Smith, and that there is no property of the firm, or individually, liable at law to satisfy said judgment. He seeks to subject this property to the payment of his judgment.
    Horatio Page by cross-petition asserts prior liens in his favor, and asks that said lot be subjected to satisfy his claims.
    He sets up one judgment, rendered at the January term, 1871, of the Franklin common pleas, against said Benjamin E- Smith, John F. Bartlit, Samuel E. Ogden, and Theodore Comstock, for $12,220.
    Under the statute then in force the defendants to that judgment obtained a second trial by giving a proper undertaking.
    Subsequently the case was removed to the circuit court of the United States for the southern district of Ohio, where, on the 28th of April, 1881, a final judgment was rendered against said defendants for over $19,000. This was followed by a levy on the lot in controversy, May 1, 1881. Page’s second judgment was rendered in the district court of Franklin county, in April, 1875, for over $13,000, against Samuel E. Ogden, Benjamin E. Smith, John F. Bartlit, Theodore Comstock, and R. E. Champion, which, on error to the supreme court of Ohio, was affirmed in September, 1880, and this was followed by a levy, March 10,1881. These two judgments against Smith and others, were the individual liabilities of the several defendants, and not the firm liabilities of Bartlit & Smith.
    Thomas’ judgment was, on the other hand, a partnership liability. In his reply to the cross-petition of Page he alleges, that for ten years prior to 1870, and from that time till December 22, 1875, he was a creditor of the firm of Bartlit & Smith in sums ranging from ten to twenty thousand dollars, and from 1871 to December 22,1875, he was such creditor from twenty to twenty-five thousand dollars. That on the 22d of December, 1875, the firm then owed him upon settlement,$22,000, evidenced and secured only by certifieates of deposit of said banking house of Bartlit & Smith, and on that day he surrendered to them ten thousand dollars of said certificates, and received in lieu thereof a promissory note of said firm for a like amount, payable in two years, at eight per cent interest; and to secure the payment of this note, Smith, his wife joining, gave him a mortgage upon his individual property, being his interest in the Opera House block, Columbus. This was a second mortgage thereon, and upon the foreclosure of the prior mortgage, the proceeds of the sale did not reach Thomas’ claim, hence nothing was realized therefrom.
    This note of $10,000 is the basis of Thomas’judgment, which he seeks to have satisfied by sale of the lot in question. He avers that this lot is the property of the partnership of Bartlit & Smith; that the same was purchased for partnership purposes, and actually used in and for the benefit of the partnership business:
    To this reply there was a demurrer. In the court below the case was referred to a master to state the priority of liens. He found that, as between Thomas’ judgment against the firm, and Page’s two judgments against the individuals' composing the firm and others named, the former was prior and paramount.
    The common pleas and, district court so adjudged, and Page seeks to reverse these judgments, and claims priority over Thomas’ judgment by reason of the prior statutory liens acquired in January, 1871, and April, 1875, upon the rendition of his said judgments, the legal title at that time of said lot being in the individual partners of the firm of Bartlit & Smith.
    It does not appear when the debts, evidenced by the several certificates, of deposit surrendered, accrued. All that appears is that Thomas held them prior to the time they were surrendered.

      JE. L. and 11. C. Taylor, for plaintiff in error.
    The lien of Page was prior to the existence of the claim of Thomas against the partnership property ; it therefore has priority, and can not be postponed to that of Thomas. 6 Ohio, 156; 3 Ohio, 517; 2 Ohio St. 36. And chancery can not interfere. Meech v. Allen, 17 N. Y. 302; 1 Story’s Eq. Jur., § 553; Mower v. Kip, 6 Paige, 88; Wilder v. Keeler, 3 Id 171; Averill v. Loucks, 6 Barb. 471.

      J. C. Richards and J. T. Holmes, fordefendentsin error.
    The claim of Thomas being a debt against the partnership is entitled to be first paid out of the partnership property, and will not be postponed to the judgment lien of a creditor of one of the partners, although such lien attached prior to the accruing of the partnership debt. Bank v. Sawyer, 38 Ohio St. 339 ; Bank v. Sprague, 5 C. E. Green (N. J.) 16 ; Freem. Judg., § 357; Meily v. Wood, 71 Pa. St. 488; Ryder v. Gilbert, 16 Hun. 163 ; 58 Cal. 42; Tappan v. Blaisdell, 5 N. H. 190 ; Johnson v. Evans, 7 Man. & G. 240; Mayhew v. Herrick, 7 C. B. 229 ; Phillips v. Cook, 24 Wend. 398; Lucas v. Laws, 27 Pa. St. 211 ; Douglas v. Winslow, 20 Me. 89; Pierce v. Jackson, 6 Mass. 242; Allen v. Wells, 22 Pick. 450 ; Bardwell v. Perry, 19 Vt. 292; Dow v. Sayward, 12 N. H. 276.
   Johnson, J.

The judgments below are to the effect that the partnership liability to Thomas must first be paid, although Page had acquired a statutory lien, by judgment on individual claims.

The conceded facts of the case are: First, that the statutory lieu of Page’s first judgment attached to the lot in controversy as early as January, 1871, and of the second judgment as early as April 15,1875. At those times, and until June 10, 1875, the legal title to said lot was in Benjamin E. Smith'and John F. Bartlit. Second, that the said lot was purchased with the funds of the partnership, for partnership purposes, and was actually used in and for the benefit of the partnership business of said firm of Bartlit & Smith. Third, that'the two judgments of Page were not partnership liabilities of said firm, but that the judgment of Thomas was such a firm liability.

For the purposes of this decision, we will assume, without deciding, that the note taken by Thomas, December 22, 1875, for $10,000, in' lieu of certificates of the firm for like amount, was the commencement of the firm liability to Thomas.

We then have a case wherein the statutory liens antedate the partnership liability to Thomas, and the question is, which has priority ?

At the time these statutory liens attached, the partnership was a going concern, and so continued until March 16, 1876, when it terminated with the -death of John F. Bartlit, at which time it was insolvent, the assets being insufficient to pay the partnership liabilities.

The legal title to this lot at the time Page’s statutory liens attached was, in equity, held in trust for the benefit of the partnership. It was afterward conveyed to Henry Miller by deed, absolute upon its face, but his claim, -whatever it was, had been satisfied, and he, it is conceded, is a mere holder of the legal title.

He, therefore, holds it under a like trust.

Counsel for Page concede that if Thomas’ claim antedated his liens, the former would be entitled to priority, but they claim that a subsequent partnership liability during the continuance of the firm can not have such priority.

Though there are other questions in the case on which we think the court below did not err, we have reserved this single question for report.

Upon the general question of the equities of partnership and individual creditors nothing need be said, as the rule is too well settled to admit of discussion; that, in ease of the insolvency of the partnership, its assets must first be applied to the satisfaction of partnership liabilities, and while the individual interest of each partner is liable to seizure upon execution by his separate creditors, yet that each partner holds his interest in the joint property subject to a trust, for the partnership creditors, and the claims of his several copartners, so that the beneficial interest of each is his residuary share after the partnership accounts are all settled and the rights of parties inter sese adjusted. The levy or lien acquired by the separate creditor only holds this beneficial interest. The statutory liens of Page acquired in 1871 and 1875 reached this beneficial interest only, subject to the trust stated. Had Page at those dates commenced actions to ascertain that interest and to have it subjected to the payment of his judgments, the- residuum, after winding up the partnership, if he then had the right to wind it up, would have been the share of Bartlit & Smith in said lot, after all partnership claims were settled.

He did not do this, but permitted the partnership to continue, subject to all the hazards of the business and to all the prospects of gain by reason of its continuance. Until the mutual relations of the partners, and the trust incident thereto, are lawfully terminated, the property is subject to the rights of partners, and their creditors, to have the same devoted to its mses. In the case at bar, this relation was terminated by the death of Bartlit in 1876.

In the meantime the partnership liability to Thomas was incurred; Page’s lien, therefore, was a lien upon the legal title of property held in trust for other purposes than to pay the individual debts of the joint owners. Whether those debts had their origin before the date of his liens, or afterward, while the property was being used and held to carry out the object of the trust, is immaterial, as the benficial interests of the separate partners is only that which remains at the termination of the trust and after all partnership liabilities are adjusted. The trust being of a continuing nature, this beneficial interest can not be determined until the trust is determined. Neither partner has any distinct interest that he can call his individually, until that beneficial interest is ascertained, and a separate creditor, by statutory lien or by seizure, can acquire no greater interest than the partner has.

We hold, therefore, that the lien of the Page judgments is subordinate to the equity of Thomas to subject the partnership assets to the payment of his partnership claim, although it may have accrued since said liens attached.

In Norwalk National Bank v. Sawyer, 38 Ohio St. 399, it was held that: “ Land purchased with partnership funds, and occupied and used by the firm in conducting its business, is partnership property, although the conveyance is made to the individual members of the firm; and a third person having knowledge of such facts, who takes from one of the partners a mortgage on his undivided interest in such land to secure the individual debt of such partner, will be postponed to the lien of a firm creditor whose debt accrued subsequently to the execution of such mortgage.”

That case holds that although a mortgagor is a purchaser and entitled to the protection of a bona fide purchaser where he acts without notice of the fact that it is partnership property, yet where he has such notice, his mortgage is subordinated, not only to debts existing at the time the mortgage took effect, but also those arising subsequent to the date of the mortgage.

The statutory lien of Page does not give rise to any question as to the rights of a bona fide purchaser; by such lien or by levy the judgment creditor acquires only the interest of his debtor in the premises.

While, therefore, a mortgagee without notice, finding the legal title in the names of the individual partners, lends money and takes a mortgage on the premises, will be protected as a bona fide purchaser, a judgment creditor can make no such claim.

Lovejoy v. Bowers, 11 N. H. 404, is directly in point: That was the case of a mortgage'by one partner to secure his separate debt, of one undivided half, being all his right, title, interest, and share” in certain partnership property ; followed by a seizure of the property mortgaged, some eighteen months thereafter, to satisfy partnership liabilities. Some of the executions against the partnership, upon which the seizure was made, were founded on claims which accrued prior to the mortgage, and some arose subsequent. Thd mortgagee knew it was partnership property when he took his mortgage. The partnership having continued after the mortgage, the court say: “We have no means of ascertaining what the surplus might have been when the mortgage was made. There might then have been nothing. All the property now taken by the subsequent creditors may in fact have been supplied by them, or have been derived from profits on contracts made with them, and in that case they have taken nothing to which., the plaintiff would have been entitled at the time his mortgage was made. Considered as a mortgage of the interest of one partner in the partnership property, and admitting that such a mortgage might be valid as between the parties, the mortgagee, having permitted the mortgagor to continue the business, could only be entitled to such surplus as might remain after the payment of the partnership debts, whether contracted before or after the execution of the mortgage. He-could stand in no better situation than the mortgagor in this respect.”

Jones on Mortgages, section 120, and cases there cited.

Eor reasons equally cogent, the same rule applies as between liens of separate creditors on partnership property, and partnership creditors whose claims accrue during the continuance of the partnership, whether prior or subsequent to such liens. Receivers v. Godwin, 1 Halsted’s Ch. 334; Parsons on Partnership, *167 and note (q), also Chap. X, section II and notes ; 1 Lindley on Partnership, * 295 and notes; Story on Partnership, sections 263 and 274 and notes.

Judgment affirmed.


text:
    State ex. rel. Silsbee v. Boyce.

      Streets — Franchise to use— Whether forfeited by lapse of time occupied in litigation — Conditions precedent and subsequent — Time reckoned from end of litigation — Mandamus to compel action by board on approval of bond.

    ■Where a city by ordinance grants permission to lay pipes in its streets and public places on certain conditions, among which are, that the grantee before commencing the work of laying pipes shall give a good and satisfactory bond, to be approved by the city solicitor and by a board, and that such work shall begin within one year from.the taking effect of the ordinance or it shall become void; and before it takes effect the city solicitor, claiming the ordinance is void, brings suit against the grantee and the city to enjoin both from acting under the ordinance ; and the injunction, after being allowed, is dissolved, and the case-is appealed, when on hearing the petition is dismissed, and then proceedings in error are prosecuted, and the final judgment sustains the ordinance and is in favor of the grantee; and by reason of the pendency of the action and proceedings the city solicitor and the board refuse to act in approval of a bond duly presented; and the city in no respect objects to such action, proceedings or refusal; and, within one year from-such final judgment but more than one year after the ordinance takes effect, the grantee duly presents another bond for approval, and action thereon is refused on the sole ground that the franchisees forfeited by lapse of time: Held, 1. Where the conditions of the ordinance do not clearly appear to be conditions precedent, they will be regarded as conditions subsequent.
    2. The pendency of such action and proceedings may excuse such delay of the grantee and prevent a forfeiture, and may be regarded as postponing the beginning of the time prescribed for forfeiture until the date of such final judgment; and the time given by the ordinance may be reckoned from the date of such judgment.
    3. A bond, duly presented for approval within one year from the date of such final judgment, should be acted upon by the city solicitor and by the board; and upon their refusal so to act they may be compelled by mandamus to take proper action thereon.
    Error to the District Court of Hamilton county.
    January 24, 1880, the city of Cincinnati passed an ordinance granting to Samuel Silsbee the right to lay pipes in the streets of the city for certain purposes, and this permission was upon certain conditions, among which were the following : That Silsbee “ shall furnish to the city of Cincinnati on the several streets, lanes, alleys, avenues, commons, etc., in which the main or lateral pipes for supplying the citizens with heat and power shall be laid and in use, heat for all public buildings belonging to and used by the city for public purposes, by any department of the city government, at a price, during each and every year hereafter, not to exceed eighty (80) per centum of the cost of such heating by the usual method to the city for and during the year 1878.
    “ Sec. 3. That the board of city commissioners, or its successors, shall have the right to prescribe what portions of the streets shall be broken up at a time, and to direct at what and how many points the work shall be carried on.
    “ Sec. 6. That no street, etc., shall be used or broken up for the purpose of laying or repairing pipes, by said Silsbee, his associates or assigns, without a permit from said board of city commissioners, or its successors, signed by its president and attested by its clerk.
    “ Sec. 10. That the said Silsbee, his associates, their heirs, successors or assigns, shall begin the work of laying said steam pipes, under the privilege hereby granted, within one year from the taking effect of this ordinance, and within three years shall have laid one mile of main pipes, otherwise this ordinance shall become void and of no effect.

      “ Sec. 9. That before commencing the work of laying said pipes, said Samuel Silsbee, his associates, or assigns, shall execute and deliver to the said city of Cincinnati a good and satisfactory bond, to be approved by the board of city commissioners, or its successors, and the city solicitor, in the sum of fifty thousand ($50,000) dollars, conditioned that they will restore the said streets, avenues, alleys, and public places, wherein the said pipes and steam heating system shall be laid or used, to as good condition as before, ■and to the satisfaction of the chief engineer of the board of city commissioners, or its successors; and also to indemnify and save the city harmless against any loss or damage that may accrue to it in consequence of said steam heating, or laying of said pipes, either directly or indirectly; and also that he and they shall, and will, well and truly observe and perform all that is required of him and them by this ordinance.
    “ Sec. 14. This ordinance shall take effect and be in force from and after the earliest pei’iod allowed by law.”
    January 29, 1880, Philip Kumlcr, as city solicitor, at the request of a tax-payer, filed his petition in the court of common pleas of Hamilton county, praying an injunction to restrain Silsbee and the city from doing any thing under said ordinance, claiming it was void, as being beyond the power of the city to grant such an ordinance.
    A temporary injunction was granted.
    February 10,1880, said ordinance became a law, it having been advertised the required length of time.
    March 25, 1880, the legislature of the state passed an act ratifying said ordinance, and granting Samuel Silsbee said franchise.
    June 18, 1880, final hearing was had and entry made refusing an injunction in the case wherein Philip Kumler, as solicitor, was plaintiff, and dismissing his petition, after he had amended his pleadings claiming the act of the legislature void as being retroactive.
    The solicitor immediately gave bond, and appealed to. the district court of Hamilton county.
    January 13, 1881, and within one year from the taking effect of the ordinance, Samuel Silsbee tendered to the city solicitor and the board of public works a good and sufficient bond, as is required by section 9 of the ordinance, which the solicitor refused to act upon, giving as his reason the pendency of said litigation, and so indorsed on the bond. The board of public works refused to act for the same reason, as alleged at the time. The bond remained on file invoking action. At the same time the board of public works was asked to designate the place at which to break ground, and for a permit so to do, as is required by section 6 of the ordinance.
    January 29, 1881, the‘solicitor’s petition and cross-petition were dismissed by the district court, and a decree rendered in favor of Silsbee. The solicitor immediately filed his petition in error in this court.
    May 4, 1881, the board of public works, after taking the advice of the city solicitor, who gave as his opinion that the ordinance was void, and that they ought not to act on account of the litigation then pending in the supreme court, refused to act on the bond, or to designate the place at which to break ground, or to give a permit so to do, giving as their reasons those above stated.
    November 7, 1882, this court rendered final judgment in favor of Samuel Silsbee.
    October 16, 1883, Samuel Silsbee tendered a seeond good and sufficient bond, as is required by section 9 of the ordinance, to the solicitor and board of public works, and within one year from the final decision in his favor. Both the solicitor and board of public works refused to act, claiming the franchise was forfeited under the conditions imposed by section 10 of the ordinance, requiring work to be begun within one year from the taking effect of the ordinance.
    November 10, 1883, plaintiff made application to the district court for a mandamus to compel the solicitor' and board of public works to act in approval or disapproval of the bond; and on March 13, 1884, that court dismissed the petition; a bill of exceptions was taken, and the case is here on error for review.

      Alfred B. Benedict; M. W. Oliver; Stallo, Kittredge $ Wilby; and Noyes 6¡ Fitzgerald, for plaintiff' in error.

      Follett, Hyman Kelly; P. H. Kumler, and Dawson, McG-arry $ Overbeck, for defendants in error.
   Follett, J.

The validity o.f this ordinance has been tested by the tax-payers of Cincinnati through their city solicitor, and this court has held (Kumler v. Silsbee, 38 Ohio St. 445) the ordinance valid ; and it does not appear that the legislative board of the city government has repealed the ordinance, or has sought to defeat the grant.

The ordinance does not contain a provision in express words that the grant or franchise shall take effect upon any act, event, or condition. There is nothing to contradict section 14 of the ordinance, which provides : “ This oi’dinanee shall take effect and be in force from and after the earliest period allowed by law;” and there is nothing that suspends the vesting of the grant or franchise. This ordinance grants certain privileges to individuals ; and such a grant or franchise is strictly construed; People v. Ferry Co., 68 N. Y. 71; and in a certain sense it is a contract with the public, Hard. St. L. Ch. 2, and it becomes void by force of the legislative declaration contained in the grant; Railroad Co. v. Railroad Co., 45 Cal. 365; Pom. Eq. Juris., § 458; Sedg. Stat. Law, 83.

But there is a difference between conditions precedent and conditions subsequent. “ In the former case equity ban give no relief. The failure to perform is an inevitable bar. No right can ever vest. The result is very different where the condition is subsequent.” Davis v. Gray, 16 Wall. 229, 230.

We may also apply the principle that the law strictly construes provisions working forfeitures: “ Such statutes are to reach no further in meaning than their words; no person is to be made subject to them by implication, and all doubts concerning their interpretation are to preponderate in favor of the accused. Only those transactions are covered by them which are within both their spirit and their letter.” Bish. Wr. L., §§ 192-194.

“ Stipulations in a contract providing for disabilities or forfeitures are to receive, when the intent is doubtful, a strict construction against those for whose benefit they are introduced.” West v. Citizen’s Ins. Co., 27 Ohio St. 1, 13.

The provisions of section 10 of the ordinance are that 'Silsbee shall begin the work “ within one year from the taking effect of the ordinance, and within three years shall have laid one mile of main pipes, otherwise the ordinance shall become void and of no effect;” and they may be regarded as conditions subsequent.

By the ordinance a good and satisfactory bond must be delivered to the city before commencing the work, and the board of public -works and the city solicitor are to determine whether the bond presented be such a bond. As they have refused to act in the matter, plaintiff brings his action to require them to proceed according to law and the requirements of the ordinance to take action in approval or disapproval of the bond.” The answer avers that the city solicitor “ approved the same as being in form such as required by the ordinance,” but that the solicitor gave his opinion to the board, “ that the permission, granted by said oi’dinance to the relator, had been lost and forfeited by him under the provisions of section 10 of the ordinance,” and thereupon the board “ refused to take action upon the alleged bond, or to investigate the sufficiency of the sureties thereon.”

Before commencing the work, Silsbee must not only execute and deliver a good and satisfactory bond, but he must have a permit from the board of public works. If there be no bond, the board may not graut a permit or direct at what point or points the work shall be carried on. And when the bond is approved as good and satisfactory, the permit and directions are still to be obtained before the work begins. Silsbee was to have one year from the taking effect of the ordinance to begin the work of laying steam pipes; and within that time he must have his bond approved, lie must give the city solicitor and the board a reasonable ti me to ascertain whether the offered bond be good and satisfactory — time to act on the sufficiency of the bond.

Before.the ordinance took effect, Kumler, as city solicitor, filed a petition against Silsbee and the city of Cincinnati, to enjoin Silsbee and the city from doing any thing under the ordinance, claiming that the ordinance was void. After the commencement of that action and within one year from the taking effect of the ordinance, Silsbee tendered a good and sufficient bond and asked for a proper permit ;.the solicitor and-the board refused to act because of the pendeney of that litigation. In that case the city, as well as Silsbee, was a party ; and it does not appear that the city, in any respect, objected to the action, or directed or requested the solicitor or the board to act as to either the bond or the permit. The city permitted the proceedings in that case to control it, and the city is bound by the judgment in that case.

The solicitor is a public officer elected by the people, and, when required so to do by resolution of the council he shall prosecute or defend for and in behalf of the corporation, except in certain cases (Rev. Stats., § 1774); and of his own will, or at the request of a tax-payer, he may bring suit for injunction to restrain the abuse of corporate powers.(Rev. Stats., § 1777). Kumler as solicitor seems to have brought .that suit at the request of a tax-payer. We need not determine the city’s responsibility for the solicitor’s acts in that suit, but the pendency of that suit prevented action in approval of the bond, as the solicitor and the board declined to act by reason of the suit, and Silsbee needed to have that suit ended before he asked for mandamus to compel action. Attorney-Gen. v. The Mayor, 128 Mass. 312; The State v. Patterson, 11 Neb. 266 ; Chicago v. C. § W. I. R. R. Co., 105 Ill. 73; High Ex. Rem., § 21. And Silsbee’s delay was excused by the law and by the acts of those to whom was given the special trust of approval, and which acts were acquiesced in by the grantor. And the permission granted by the ordinance to the relator was not lost by the enforced delay. In such circumstances the pending suit and the refusal of the city solicitor and of the board to act upon the bond, may be regarded as preventing “the taking effect of this ordinance,” or as postponing the terms of its conditions until the final judgment in that case. Chicago v. C. & W. I. R. R. Co., supra ; Thayer v. Boston, 19 Pick. 511 ; Davis v. Gray, supra, 204, 230, 231; Hubbard v. Norton, 28 Ohio St. 116, 127, 128.

The plaintiff, Silsbee, is entitled to an unobstructed year of time in which to begin the work of laying pipes, and some of that time yet remains. In Kumler’s case the final judgment in Silsbee’s favor was rendered November 7,1882; and within one year from that time, on October 16, 1883, Silsbee executed and delivered his bond to the proper city officers, the defendants, for their official action. They should have acted promptly upon the sufficiency of the bond, as they perform any other official act; but after delay they refused to act in approval or disapproval of the bond. The time the bond was unnecessarily detained should not be reckoned against Silsbee, neither the time spent in compelling action.

Silsbee did not present his bond for approval until his year for beginning the work had well nigh expired; and he must show a clear, legal right to have the remedy by mandamus that he seeks (High Ex. Rem., § 9); but there remained some three weeks oí his time, and he has shown his right to have the defendants act upon the bond and to have the remedy by mandamus, as prayed for in the> petition.

In refusing plaintiff's prayer, and in dismissing his petition, the district court erred.

Judgment reversed and cause remanded for peremptory mandamus.


author: McIlvaine, C.'J.

text:
    Fleig v. Sleet.

      Sale — Payment by worthless cheeh.

    To pay for a bill of goods, the buyer sent to the seller a cheek, drawn by one bank upon another, indorsed by the buyer to whose order the check was payable, and the seller, on receiving it, sent back to the buyer a receipt acknowledging payment of the bill. At the time of sending the check by the buyer, and the receipt by the seller, it was supposed by the buyer and seller that it was good, but in fact there were no funds of the drawer in the hands of the drawee subject to the payment of the check at the time it was drawn or afterward. Held, that in an action on an account for goods sold and delivered, a plea of payment can not be maintained on the facts above stated.
    Error to the District Court of Brown county.

      ■ The original action was commenced by defendants in error against plaintiff in error, before a justice of the peace. The action was appealed to the court of common pleas of Brown county, where, on March 29, 1877, the plaintiffs declared on a book account for teas sold and delivered by them to defendant on the 25th day of February, 1876, of the value of $61.77. To this account the defendant pleaded payment in full on the 11th of July, 1876. Payment in whole or in part was denied by reply.
    On trial judgment was rendered for the defendant, and on the overruling of a motion for a new trial, on the ground that the judgment was contrary to the law and the evidence, a bill of exceptions, setting forth all the testimony, was duly filed.
    On petition in error to the district court, the judgment of the court of common pleas was reversed. This proceeding in error is prosecuted by Fleig, defendant in the courts below, to obtain a reversal of the judgment of reversal in the district court, and the affirmance of the judgment in the court of common pleas. A further statement of the ease will be found in the opinion of the court.

      W. D. Young, for plaintiff in error.

      G. W. ■Harding, for defendant in error.
   McIlvaine, C.'J.

It appears from the testimony set out in the bill of exceptions that on July 11, 1876, the plaintiff’ in error remitted by mail from Ripley, Ohio, where he resided, to Sleet & Rose, defendants in error, at Cincinnati, Ohio, where they resided, a check or draft for $61.77, drawn by Reynolds & Co:, bankers at Ripley, Ohio, on E. Kinney & Co., bankers at Cincinnati, Ohio, payable to the order of H. Fleig (plaintiff in error), and by him indorsed to Sleet & Rose in payment of the account upon which suit is brought; that on the following day Sleet & Rose received the check by due course of mail, and immediately remitted to Fleig a receipt as follows :

“ Cincinnati, July 12,1876.

“ Received of H. Fieig, Esq., sixty-one and dollars, in payment invoice teas, February 28.

$61.77. “ Sleet & Rose.”

It further appears that Sleet & Rose did not present the check to E. Kinney & Co. for payment until July 15th,'when payment was refused on the ground that the drawers had no funds in the bank subject to draft. Whereupon the cheek was immediately returned to Fieig by letter, with information of the dishonor, and a request that Fieig should remit the amount of the account. This letter was duly received, but was not answered before suit was brought on the account.

Reynolds & Co. failed on the 11th of July,' the same day the check in question was drawn, having overdrawn their account with E. Kinney & Co. on the previous’day, July 10th. E. Kinney & Co., however, continued to honor the drafts of Reynolds&Co. until Julyl2th, when the failure of the latter was first learned by the former. Payment of the check in question would have been refused by E. Kinney & Co. at any time .after notice of the failure. No question is made in this case as to the liability of Fieig as indorser on the check alleged to have been used as the medium of paymept of the account sued on. The delay of the indorsees in presenting the same for payment to the drawees may be assumed as negligence under the law merchant, whereby the indorser as such was discharged.

Neither is there any doubt as to the fact that the parties agreed that the transfer of the check was in payment of the account. The sole question is, was the ageeement under the circumstances set forth a valid contract, whereby the former relations of debtor and creditor, on account of goods sold and delivered, was in law extinguished.

It is not controverted that where a debtor makes and delivers a check to his, creditor in payment of an account, upon a bank where the debtor has neither funds nor credit, it is not a payment of the account, although the creditor receives it as such. In such, case there is no satisfaction of the indebtedness ; such check is valueless. By its delivery it is impliedly represented that there are funds in the hands of the drawee subject to its payment. Relying on this representation, it is accepted as payment. Its falsity relieves the creditor from his agreement, no matter whether the act of the debtor is fraudulent or bona fide. The agreement is wdthout consideration and void. ■ The account remains an existing and continuing cause of action.

Is there any difference in effect between the case put and one where the debtor indorses to his creditor a worthless check drawn by a third person who has no funds subject to its payment? ¥e think not. In the hands of the debtor before indorsement it was without value. From the act of indorsement asimilar representation is implied, on the faith of which it is taken as payment by the creditor. ■ Between the debtor and creditor there is an accord, but no satisfaction. In law, it is like payment in counterfeit money, or broken bank bills. The claim thus intended to be paid remains a subsisting cause of action.

If, by the delay of Sleet & Rose in presenting the check for payment, any prejudice had resulted to Fleig, a different question might have arisen in the ease. But no such prejudice is shown. There were noffunds in the hands of the drawees subject to the payment of the cheek at the time it was drawn or subsequent thereto. It would not have been paid if presented at the close of banking hours on the day it was received.

The drawers, Reynolds & Co., had failed before the receipt of the check by Sleet & Rose; hence no question other than the one above considered has been raised in this case.

The views we have above expressed are supported by several decided cases, from which we cite Weddigen v. Boston Elastic Fabric Co., 100 Mass. 422.

Judgment affirmed.