text:
    Yeoman et al. v. Lasley et al.
    1. The allowance of an injunction by this court in a case on error, under section 5573 of the Revised Statutes, is not the exercise of original, but of appellate jurisdiction, and is intended only for the protection of the rights of the parties in the suit or matter under review.
    2. Where the judgment, for the reversal of which error is prosecuted in this court, is pleaded as an estoppel in another suit between the same parties, it is competent for this court to enjoin the prosecution of such suit until the case in error is determined.
    Error to the District Court of Jackson County. Application for injunction.

      Harrison, Olds <& Marsh, for the application.

      W. A. Hutchms, contra.
   White, J.

Application is made on behalf of two of the plaintiffs in error, JoL' and Jonathan M. Welch, for the allowance of an injunction by this court pending the proceedings in error. The application is submitted on an agreed statement of facts and upon affidavits.

The object of the pending proceeding in error is to obtain the reversal of the judgment of the district court of Jackson county, rendered in a suit instituted by Hiram G. Lasley, the mortgagee, for the foreclosure of a mortgage. The court found the amount of the mortgage debt, and in default of payment ordered a sale of the mortgaged premises.

The mortgage was given to secure the unpaid portion of the purchase-money of a tract of land purchased of Lasley by the defendants below, the present plaintiffs in error. In their answer to the suit on the mortgage, they set up that the sale of the land was effected by fraud on the part of Lasley, and prayed a rescission.

The purchasers gave to Lasley their separate notes for their respective portions of the unpaid purchase-money; and as John and Jonathan M. Welch took a half interest in the purchase they gave their joint notes in that proportion. The notes were all included in the mortgage.

Besides the suit for the foreclosure of the mortgage, Lasley also instituted separate suits on the notes to recover personal judgments against the makers.

In the personal action against John and Jonathan. M. Welch, the defendants, among other things, set up by way of defense, (1) the, same fraud pleaded in the answer to the suit on the mortgage; (2) an agreement between the parties, that the suit on the notes should not be prosecuted until the mortgage suit on error should be determined.

To these defenses the plaintiff, Lasley, pleads, by way of reply: 1. The finding and judgment of the district court in the suit on the mortgage, as an adjudication of the question of fraud thus raised. 2. A denial of the making of the alleged agreement.

The present application asks that Lasley be enjoined from prosecuting this personal action to final judgment.

The granting of the application for an injunction is resisted, on the ground that it would be the exercise of original jm-isdiction by this court; and Kent v. Mahaffy (2 Ohio St. 498) is relied upon in support of the position. It was there held that the power to grant an injunction in a case pending in the court of common pleas cannot constitutionally be conferred on this court. To the same effect is .the case of Railway Company v. Hurd, 17 Ohio St. 144.

We do not question the authority of these eases; and in so> far as the application is founded on the alleged agreement to. suspend proceedings in the action on the notes, we think the objection is well taken. If such an agreement was made, the parties must seek to avail themselves of it in the court of common pleas, where the action is pending.

But in so far as Lasley, the defendant in error, relies on the finding and judgment of the district court, in the suit on the. mortgage, to support his action on the notes, he stands on a different footing. That finding and judgment are under review, on petition in .error, in this court; and the execution of the judgment or decree lias been staid until tbe case in error shall be determined.

To allow tbe judgment of tbe district court to bar tbe making of defense in tbe action on tbe notes, is only an indirect way of enforcing that judgment; and may deprive the plaintiffs in error of the benefit of its reversal, if, on the final bearing of tbe petition in error, it should be reversed. Tbe proceedings in error in tbe mortgage suit would form no part of tbe record of tbe suit on tbe notes; and hence would constitute no ground for reversing tbe judgment rendered in tbe personal-action on tbe notes.

Section 5513 of tbe Revised Statutes authorizes this court, or a judge thereof, to allow an in junction,, as a temporary remedy, during the pending in this court of a case on error.

Tbe making of such an allowance is not tbe exercise of original, but of appellate jurisdiction, and is intended -'only for tbe protection of tbe rights of tbe parties in tbe suit or matter under review, on error.

Injunction allowed.


source: Caselaw Access Project

author: Boynton, J.

license: Public Domain

text:
    The Iron Railroad Company v. John Mowery.
    1. On the trial of an action against a railroad company by a passenger, for an injury received through a collision of the trains of the company, a prima facie presumption of negligence arises against the company.

      2. Where a passenger, to avoid impending danger, attempts to leave the car in which he is riding,- believing, upon reasonable grounds, that by so doing he will escape injury, and, while in the act of leaving, is injured through the company’s negligence, he is not chargeable with contributory negligence, although, had he made no attempt to leave the car, the injury would not have happened.
    3. Where a party remits a part of a judgment in his favor to avoid a reversal of the same, he cannot prosecute error to reverse the judgment thus reduced in the amount, although the court may have been wrong .in finding that the judgment was excessive.
    Eeeok to tbe District Court of Lawrence .County.

      The plaintiff took passage on the defendant’s railroad, to be ■carried from the city of Ironton to Etna Station. While on the .way, the train was stopped to prevent injury to some cattle that had strayed upon the track, and as the locomotive again started, a coupling broke or gave way, leaving the car in which the plaintiff was riding, and others, standing on the track. In the course of from eight to ten minutes a coal train belonging to the defendant came up behind, and ran into the rear car of the standing cars, causing an injury to the plaintiff.
    To the plaintiff’s action to recover for the injury, alleging it to have been caused by the company’s negligence, the company answered, denying its own negligence, and alleging contributory negligence on the part of the plaintiff. It appeared from the evidence in the case, that as the detached cars were standing on the track, the plaintiff, on hearing a loud noise from without, and discovering a rapid movement of some of the passengers, left his seat for the purpose of going out of the car, and as he reached the front platform, the collision occurred, and resulted in breaking his log. It also appeared that the conductor of the train told the passengers to keep their seats,' •and that if the plaintiff had not left his seat, he would not have been injured. But the jury found, specially, that the' plaintiff was not guilty of negligence in attempting to leave the ear, this being the only negligent act charged against him.
    The court, among other things, charged the jury as follows “1. It being admitted that the defendant is a carrier of. passengers, that, on the occasion mentioned in the petition, the plaintiff was a passenger on defendant’s train, having paid his fare as stated, it was the duty of defendant to carry him safely to the point of his destination without injiuy ; and when it is shown that the defendant failed to carry the plaintiff safely to the place of his destination, this failure puts the defendant, prima facie, in the wrong, and the burden of proof devolves upon it to show that the injury was the result of a pure accident, and that it could not have been prevented by the* exercise of the utmost care and skill which prudent men are-accustomed to employ under similar circumstances.

      “ 5. Although, the defendant did not exercise the degree of care required of it, yet, if the plaintiff was also in fault, and that fault contributed directly to produce the injury, he cannot recover. His right to recover, however, is not affected by his having contributed to his injury, unless he was in fault in so doing.”
    To each of these instructions the defendant excepted. The-jury returned a verdict for the plaintiff for $2,600, upon which, after overruling a motion for a new trial, made on the ground, among others, that the damages were excessive, judgment was entered.
    They also specially found as follows :
    “ Third Question. If he (plaintiff) did so leave and go out,, did he do so in good faith, believing and having reasonable-grounds therefor, that he, or his wife, was in great danger by remaining seated in the car, and that he could better avoid said danger and save himself and wife by so doing ?
    “ Answer. Tes.”
    On error to the district court, the following judgment and entry were made:
    “ This cause was submitted to the court upon the petition and the assignment of errors therein, and was argued by counsel, on consideration whereof the court do find that there is no error therein, except in regard to the amount of damages-assessed by the jury, which damages the court do find were-excessive, and for that reason, a new trial ought to have been granted. The court, therefore, are of the opinion that, unless the damages in excess of fifteen hundred dollars are remitted by the defendant in error as of date of judgment, said judgment of the court of common pleas should be reversed ; to which ruling of the court, that said damages are excessive, and in requiring said defendant in error to enter said remittitur of said damages, as a condition of affirmance of judgment, defendant in error excepts, and asks that his exceptions be noted,, which is done. Thereupon said defendant in error, while not waivipg, but insisting on his right to the whole amount, entered said remittitur to date as of time of judgment of damages in excess of fifteen hundred dollars; and said re.mittitur having been entered, it is considered by the court, that said judgment of the court of common pleas, with said remittitur so entered as of date of said judgment, be and the same is hereby affirmed with costs, and it is ordered that a special mandate be sent to the court of common pleas, to carry said judgment into execution.”
    The plaintiff assigns, as error in this court, the judgment finding the damages excessive, and compelling him to remit §1,100 of liis verdict.
    Ry cross petition, the defendant assigns as error the foregoing instructions to the jury.

      O. F. Moaré and Neal <& Oherrington, for plaintiff in error:
    Mowery was guilty of contributory negligence. Quinn v. Railroad Co., 51 Ill. 495 ; Railroad Co. v. Johnson, 38 Ga. 409 ; Hickey v. Railroad Co., 14 Allen, 429 ; Wharton on Neg. §§ 300, 302, 361, and notes; Laing v. Colder, 8 Pa. St. 479 ; Railroad v. Elliott, 28 Ohio St. 340 ; Railroad Co. v. Rathgeb, 32 Ohio St. 66.
    As to a prima faoie case of negligence, see Sharman & Redfield on Neg. § 280; Holbrook v. Railroad Co., 12 N. Y. 536 ; Caldwell v. Steamboat Co., 47 N. Y. 282; Curtis v. Railroad Co., 18 N. Y. 534.

      Le&t c& Hamilton and W. A. Hutchins, for defendant in •error:
    As to contributory negligence, see Shearman & Redfield on Neg. § 28, note 2; Id. § 29, 31, and notes ; Wharton on Neg. § 301, 304. '
   Boynton, J.

This is a petition in error by the plaintiff, to reverse the judgment of the district court for wrongfully affirm-' ing the judgment of the court of common pleas ; and the judgment of the court of common pleas for alleged error in the charge of the court to the jury ; and a cross petition in error by the defendant in error to reverse the finding of the district •court that the judgment rendered on the verdict was excessive, and that, consequently, the judgment ought to be reversed, unless be, tlie defendant in error, would remit the amount of the-judgment in excess of $1,500.

Whether a presumption of negligence arises, in all cases, against a railroad company, from the mere fact that an accident has occurred from which a passenger receives an injury while-, being carried over the road of the company, is a question not. arising in the present case, and therefore is not determined but where an injury results to a passenger from a collision of. the trains of the company, we have no doubt that a ygri/mwfacie presumption of negligence arises against the company, and that unless the company relieves itself from liability, by showing that the injury did not result from its carelessness, or by showing contributory negligence upon the part of the passenger, judgment should be rendered against it. To this effect the authorities seem uniform. Stokes v. Salstonstall, 13 Pet. 181; Laing v. Colder, 8 Barr, 483 ; Christie v. Griggs, 2 Campb. 79 ; Carpul v. London & Brighton Railway Co., 5 Ad. & El. N. S. 747 ; Holbrook v. Utica & Schenectady R. R. Co., 2 Kern, 236; Curtis v. Rochester & Syracuse R. R. Co., 18 N. Y. 534-542.

We therefore think the court did not err in charging the-jury that the burden of proof was on the defendant below, to-establish the fact that the injury did not result from its negligence.

Nor do we think the court erred in saying to the jury, that the plaintiff’s right to recover was not affected by his having, contributed to his injury, unless he was in fault in so doing. The only act of the plaintiff which is alleged to have contributed to his injury, was the leaving of his seat in a moment-of excitement, and going forward to the platform of the cai’, which he had just reached when the injury was received. In respect to the attempt to leave the car, the jury found specially, that in so doing, the plaintiff believed, upon good grounds for his belief, that he could better avoid the danger, and save himself and wife from injury. This finding established the fact, that the plaintiff’s act in leaving the car, although contributing to the injury, was not a negligent act, and hence, if the language. of the charge was at all objectionable, no prejudice resulted from it to the defendant.

The remaining question arises on the assignment in the cross petition, namely, that the court erred in finding the judgment to be excessive in amount, and in determining to reverse it for that reason, unless the plaintiff should • enter a remittitur of the excess. The remittitur was entered for such excess, and judgment rendered for $1,500. In our opinion the plaintiif below is not in a position to object to the action of the court in this behalf.

The defendant, under the finding of the district court, was entitled-to a new trial, unless the necessity therefor was obviated by the action of the plaintiif. The court gave him his choice to accept a reversal of the judgment and a new trial upon the merits, or to remit the sum which, in the judgment of the court, was in excess of the amount that ought to have been recovered. The plaintiff elected to receive the amount of the judgment less the excess. By this election he was bound. He obtained a judgment for $1,500, which he would not have received had he not assented to the action of the court. That he assented reluctantly does not alter the ease. By giving consent he became bound by the action of the court.

Judgment affirmed.


author: McIlvatne, C. J. White, J.,

text:
    The State of Ohio v. John Shannon.
    Under section 33, chapter 8, title 1, oí the crimes act of May 5,1877, it is unlawful to shoot at or kill wild ducks on the lands of another person, although within the channel of a navigable river, when the owner has set up, in a conspicuous place on the shore, “aboard inscribed in legible English characters, thus, ‘No shooting or hunting allowed on these premises.’ ”
    Bill of exceptions to the Court of Common Pleas of San-dusky County.

      Shannon was arrested on a warrant issued- by a justice of the peace of Sandusky county on complaint of George G. Tindall, charging a violation of section 33, chapter 8,„ title 1, of the crimes act of May 5,1877. This section provides: “ Whoever, having received verbal or written notice from any owner of inclosed and improved lands, or any lands the boundaries of which are defined by stakes, posts, water-courses, ditches or marked trees, his agent, or a person in charge thereof, not to hunt thereon, shoots at, kills or pursues with such intent on such lands, any of the birds or game mentioned in sections .twenty-seven, twenty-eight and thirty of this chapter, and whoever shoots at, kills or pursues with such intent any of such birds or game on the lands of another upon which there is set up in some conspicuous place, a board inscribed in legible English characters thus, £No shooting or hunting allowed on these premises,’ or pulls down or defaces any such board, or the letters thereon, shall be fined,” &c.
    Among the birds or game mentioned in said section.28, are ££ wild ducks,” and the complaint charged Shannon with shooting and killing wild ducks on the land of Tindall, situate in ■said county, &e.
    Shannon, having been bound to appear and answer said charge in the probate court, was there tided, convicted and sentenced. On the trial, a bill of exceptions, containing all the testimony, was taken, and upon proceedings in error, in the court of common pleas, said judgment was reversed. To this judgment of reversal, the prosecuting attorney, under sections 38 and 39, chapter 5, title 2, of said act, took exceptions, and the same are now submitted to this court.
    The uncontradicted facts appearing in the bill of exceptions are, in brief: That Tindall was the owner and in possession of a tract of land in said county, bounded on one side by the Sandusky river — a navigable stream; that Shannon, on October 29, 1877, when the killing of wild ducks was not prohibited by the statute, was in a skiff on the Sandusky river, between the middle thereof and the shore owned by said Tindall, from which position he shot and killed wild ducks swimming in, and flying over the water- between said shore and the middle of the river; that boards incribed in legible English characters, “No shooting or limiting allowed on these premises,” were set up in conspicuous places on said shore; and that Shannon had been duly notified by Tindall not to shoot or hunt on his lands. It also appears that the position occupied by Shannon on ■the river was within the limits of navigation as used by boats and other water craft engaged in commerce; and also, that the public generally had been accustomed to fish, and kill wild ducks, in the same location, in and upon the river.
    Upon this state of facts, the state of Ohio seeks the opinion •of this court. Did the court of common pleas err in reversing the judgment of the probate court ?

      Lemmon, Finóle dé Lemmon, for plaintiff:
    It is well settled in Ohio that the riparian projirietor owns .to the center of the river. Gavit v. Chambers, 3 Ohio, 496; Lamb v. Rickets, 11 Ohio, 311; 16 Ohio, 540; Angell on Watercourses, § 10 ; Jones v. Pettibone, 2 Wis. 308 ; State v. Pottenger, 33 Ind. 402; Phifer v. Cox, 21 Ohio St. 248 ; Marine v. Schulte, 13 Wis. 692, 775 ; Bingham v. Doane, 9 Ohio 165; Brown v. Chadbonn, 31 Me. 9; Lormon v. Benson, 8 Mich. 18, 29; Bury v. Snyder, 3 Bush (Ky.) 266 ; Tyler v. Williams, 4 Mas. 397; Delaplain v. Railroad Co., 42 Wis. 214; Rice v. Ruddiman, 10 Mich. 143. Tindall was therefore entitled to possession to the middle of the river (channel). Niehaus v. Shepherd, 26 Ohio St. 40, 44, 45; Angell on Watercourses, § 53; Lamb v. Rickets, 11 Ohio, 311. The river being boundary, presumption is, Tindall owns to center •of it. Jones v. Soulard, 24 How. 41; Braxner v. Bressler, 64 Ill. 484 ; Angelí on Watercourses, §§ 10,11,17. Now, the riparian owner, owning to the center of the river, having the right to possession, being subject only to the easement of navigation, has a qualified property in the wild game (ducks) while in or over his premises. Crimes Act of 1877, ch. 8, § 33; 2 Blackstone, 419; 1 Addison on Torts, 412, 413 ; 11 East, 571; 15 Wend. 550; 7 Johns. 16; 2 Kent Comm. (11 ed.) 348; 8 Mich. 32; Angell on Watercourses (7 ed.) §§ 87, 72; 2 Blackstone, 18; 2 Johns. Ch. 163; 5 Mas. 191; 108 Mass. 446.

      W. J. Boardmiam, also for plaintiff.

      Everett (& Eowler, for defendant
    Did Shannon violate any law ? He was in a public highway, made so by law, which the state cannot annul or repeal. The ordinance of 1787 provides that, “ the navigable waters leading into the Mississippi and St. Lawrence rivers shall be a common highway, and forever free,” &c. Shannon, then, had a right to be where he was. The ducks were wild, and therefore the property of no person, until captured. Tindall had no property in the ducks. Shannon was not on Tindall’s land nor did any of his acts, in any way, affect the land or property of Tindall. Then where is the violation of the law, or any right of Tindall ? Tindall did not own to the center or middle thread of the stream. Railroad Co. v. Shusemire, 7 Wall. 272; McManus v. Carmickal, 3 Iowa, 38, 39 ; 12 How. Pr. 443.
   McIlvatne, C. J.

This cause, and June v. Purcell, decided at this term and reported ante, 396, having a question in common, were considered together. In that case it was-held, that the title of a riparian owner of land bounded by a navigable stream in this state, extended to the middle or thread of the stream. It follows, upon the principle announced in that case, that the locus of the offense alleged in this, though upon the surface of a navigable stream, was within the boundaries of Tindall’s land, and was embraced within the literal meaning of the notice, “No shooting or1 hunting allowed on these premises.”

It is true, however, that the right of Tindall to so much of his lands as was covered by the waters of the Sandusky river, the same being a navigable stream, was not exclusive, but. subject to the right of the public to use the same as a highway, so that the entry of Shannon within the boundaries of Tindall’s premises, to wit, within the limits of this public highway, did not, per se, make him a trespasser; and clearly, an action against him for trespass guare clausum fregit, could not be maintained.' Hence, it was claimed by defendant, that his conviction was wrong, because, as is claimed, this-section of the statute applies only to persons who wrongfully break and enter tbe close of another contrary to his expressed will.

The provisions of the statute were not intended to punish trespassers guare elcvusum fregit, merely because they may have been guilty of a trespass ; but were intended to punish the act of killing, shooting at, or pursuing game on the lands of another, against which notice may have been given as provided in the statute; so that a person rightfully on the premises of another may commit the unlawful act, as well as one who commits a trespass by entering upon the premises.

It seems to us, that whatever change this statute may have made in respect to the law in relation to trespass on real property, the main purpose of the legislature was to confer upon the owner of lands within this state the exclusive right to hunt and kill the designated game upon his own premises, and to protect him in such right, provided- he complies with the prescribed conditions in regard to notice.

And with regard to notice, if the lands be “ inclosed and improved,” or if the boundaries be “ defined by stakes, posts, water-courses, ditches or marked trees,” verbal or written notice “ not to hunt thereon,” will bring the offender within the operation of the statute. And where a water-course, for instance, a navigable stream, constitutes a boundary, it is the opinion of a majority of the court, that all persons who have received verbal or written notice not to Imnt upon the lands of the owner, are bound to take notice that his lands extend to the middle of the water-course, if such be the fact.

But if the lands be not inclosed and improved,” or if they be not “ defined by stakes, posts, water-courses, ditches or marked trees,” as well as where they are so defined, the owner may bring himself and his lands within the protection of the statute by setting up, in some conspicuous place thereon, “ a board inscribed in legible English characters thus, No shooting or hunting allowed on these premises.” And in such case, all persons engaged in shooting at, killing or pursuing the designated game, must take notice, not only of the statute, but of the setting up of such board, and also of the extent or boundary of the lands on which the same is set up. And in respect to this notice, it makes no difference whether the lands ■or any part thereof be covered by water or not.

It is claimed,' however’, that this statute was not intended to protect lands covered by the waters of a navigable river. A majority of the court can see no grounds upon which lands covered by navigable streams should be excluded. They are as much the subject of private ownership as unnavigable streams. There is no distinction between them made by the terms of the'statute. True, navigable streams, in this state, are ■declared to be public highways ; but the right to use a public, highway is not abridged by protecting the owner of the fee in the exclusive right of killing game therein. Travel and commerce are not thereby hindered. And as the power of the legislature to protect game, or the exclusive right of the owner •of’land to kill the same on his own. premises, is as ample over land covered by water, whether navigable or innavigable, as it is over dry land, and as there is no attempt to distinguish between them in this statute, we must hold that all alike are within the protection of this statute.

Exceptions sustamed.

White, J.,

did not concur. He was of opinion that the .statute, being penal, must be strictly construed, and that it did not embrace game found upon the open public highways.


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

text:
    The State of Ohio on relation of Clinton Riley v. John Blain, Clerk of Jackson Township, Pike County, Ohio.
    1. The wrongful exclusion of a pupil from the benefits of a common sub-district school by a teacher, under the direction of the local directors, does not defeat the right of such teacher to his wages, duly certified by the local directors.
    2. A township clerk to whom application is duly made by a teacher of a sub-district school for an order on the township treasury for the amount of his wages, duly certified by the local directors, cannot refuse to draw such order on the ground that the contract of employment, between the teacher and the local directors, wrongfully stipulated for the exclusion from the school of certain of the youths of school age residing within the sub-district.
    3. Nor can such refusal be justified on the ground that it was made in pursuance of an order of the township board of education.
    Mandamus. Error to the District Court of Pike County.
    On July 1,1876, the relator was employed by the local directors of sub-district No. 1, Jackson township, Pike county, to teach school in said sub-district for the term of six months, in consideration of $40 per month. In pursuance of such employment, the relator taught such school for six months, commencing September, 1876, and ending March 2, 1877. At the close of the term the local directors certified the amount due relator to the defendant as township clerk, whereupon the relator, having furnished said clerk with all the certificates and reports necessary to entitle him to payment, demanded of the defendant an order on the township treasury for the amount due to him under said employment, to wit, $240. The defendant, having refused to draw such order, the original proceeding in mandamus was commenced in the district court, where an alternative writ of mandamus was issued commanding the defendant to draw such order in favor of relator, or show cause for refusing to do so. To this writ defendant answered, and for cause alleged, in substance, that the contract between the relator and the local directors, under which the relator’s services were rendered, was illegal and void.
    On the trial, judgment was rendered against the relator, who, having duly executed, filed his bill of exceptions, in which all the facts admitted and proved were set forth.
    Prom the bill of exceptions it appears that, by the terms of the contract,.the children of one B. P. Smith, residing in the sub-district, were to be excluded from the school. That these children, five in number, of proper school age, were of African descent, and there were no other children of school age, of African descent, residing in said sub-district, “ or living contiguous thereto near enough for the purposes of school benefits. That the board of education of the township had made no •other provision for the education of said Smith children, but had ordered said children instructed by the teachers of said sub-district, and had ordered that if said Riley refuse to teach «aid Smith children (contrary to the order of said board), that the township clerk refuse to giv.e said Riley an order for his services as such teacher in said sub-district.” That relator had notice of the order of the board of education. That after •the order of the board of education -was served on relator, the •children of Smith presented themselves at said school for instruction and were received and taught by said relator. But within a week after said children were admitted to the privileges of the school by relator, the local directors of the sub-district “ notified said Riley that unless he taught said school in accordance with his said contract and excluded said colored children, he should be dismissed from further service.” That then and thereafter, during the balance of said term, said colored children, under the direction of the local directors, were wholly excluded from the privileges of said school.
    This proceeding in error is now prosecuted to reverse the judgment of the district court.

      A. B. Gole, for plaintiff in error.

      JR. Dougherty and II. James, for defendant in error.
   McIlvaine, J.

The arguments of counsel have been •directed, chiefly, to the question, whether or not, under the ■“ act for the re-organization and maintenance of common schools,” passed May 1, 1878, which provides for the separate ■education of white and colored children, colored children, in a •district where no provision has been made for the separate education of such children, can be rightfully excluded from the benefits of schools in which white children are instructed ? A majority of the court, however, are of opinion, that the solution of that question would not determine the rights of the parties to ■this action. Let it be conceded, for the purposes of this case, that Smith’s children were wrongfully excluded by the teacher, under the direction of the local board of directors. The rights of the parties would have been exactly similar, if white children had been wrongfully excluded. In either case, the wrong Avould result from the fact of exclusion, and not from the motive. The stipulation for exclusion in the contract of employment, as well as the fact of exclusion from the school, must be attributed to the mistake or error in judgment of the local board of directors; and the simple question is, should the relator be deprived of his compensation for services faithfully performed under the direction of his employers, solely onthe ground that such direction was in violation of the rights of certain pupils ?

By section 53 of the act, it is provided, that in each township district, the local directors shall employ, or dismiss for sufficient cause, the teacher or teachers of the school or schools-in the sub-district in which they reside,” and it is only “in case the local directors of any sub-district shall fail to employ a teacher or teachers as aforesaid,” that, “ the board of education shall employ a teacher or teachers for such sub-district.” In the case before us, the local directors employed the relator, and continued him in service during the whole period of his employment, and at the end of the term certified the amount due to him for services to the township clerk, whose duty it was, upon the filing of such certificate by the teacher, together with such' reports as were required by the rules of the board, and his certificate of qualifications from the board of county examiners (all of which were done), to draw an order for the amount upon the township treasurer. This duty was required of the defendant as township clerk, and not as clerk of the township-board of education. In order to ascertain his duty in the premises, the statute prescribing the duties of township clerk was his guide, and not the resolutions or orders of the board of education.

Assuming that the stipulation, in the contract of employment, for the exclusion of Smith’s children from the school, was void, for want of poAver to make it, and supposing further, that the act of excluding these pupils was in violation of their fights, it is nevertheless true, that the relator was employed to> teach in said sub-district, and did so teach during the whole term of his employment. And it is also true, upon this assumption, that the excluded pupils might have compelled their admission to the benefits of the school by writ of man-damns, or, by civil action, have recovered damages for their wrongful exclusion. Ample remedy was and is provided by the law for the redress of such a wrong. Bat the idea of such a wrong, and *uch remedy, is based on the assumption that these children were excluded from a public school to the benefits of which they were entitled; and in order to constitute the school from which they were excluded, a public school to which they were entitled to admission, it must be admitted that the relator was, in fact and in law, employed as a teacher by the local directors — for the reason, that if his employment as. a teacher of a public school was wholly illegal and void, it must follow that these children suffered no wrong in being excluded from the school by him, inasmuch.as, in such case, the school taught by him was a private school, to which they were not entitled to admission. But such view of the case cannot be maintained ; for surely, if the excluded pupils bad instituted proceedings to compel their admission to the school, as taught by the relator, neither the teacher nor local directors could have defended upon the ground that the school was not a public school organized and maintained under the provisions of said statute. Such defense would have been denied, not upon any ground of estoppel, but upon the ground that, in fact and in law, it was a public school within the purview of said act.

Judgment of the district court reversed, and peremptory writ of mandamus amarded.

Boynton, C. J.

Iconcurinthe reversal of the judgment of the district court, solely on the ground that when the teacher presents to the township clerk the certificates and reports named in the last clause of section 53 of the act of May 1, 1873, for the reorganization and maintenance of common schools, it is the duty of the clerk to draw an order on the township treasury for the amount due the teacher for his services. He cannot go back of the certificate of the local directors, and inquire into the validity of the contract under which the services were performed. That a contract between a teacher and local directors, by which the former agrees, as a part consideration of his employment, to exclude from the school pupils that have the right to attend the 'school, is illegal, and consequently void, I entertain no doubt. But where the same has been so far executed, as to leave nothing to be done save the mere ministerial act of drawing an order for the amount certified to be due the teacher, it seems to me to be entirely beyond the power of the township clerk to prevent payment of the services, by withholding the order.

Johnson, J.,

dissenting. The statement of facts shows that the relator, in making his contract with the local directors to teach the school, expressly stipulated for the exclusion of certain •colored youth from the school, and that he faithfully executed •.this contract by actually refusing to admit or teach them ; that it was not practicable for the board of education of the township to provide for them a separate school, and that said board had -ordered them instructed in this school.

This contract being made and performed by the relator in violation of the school law, and of the rights of these children, .and against public policy, as is conceded by the opinion of a majority, I think it follows, that no court of justice should .lend its aid to its enforcement, especially where it appropriates money out of the school funds provided for the equal benefit ■of all. Spurgeon v. McElwain, 6 Ohio, 442; State v. Findley, 10 Ohio, 51; Rossman v. McFarland, 9 Ohio St. 369; Huber v. German Cong., 16 Ohio St. 371; Delaware v. Andrews, 18 Ohio St. 49.


author: White, J.

text:
    The State of Ohio, by John Little, Attorney-General, ex rel. v. The Dayton & South-eastern Railroad Company.
    1. The provision in section 16 of the corporation act of May 1, 1852, which requires a railway company to place a highway crossed or diverted, “in such condilion as not to impair its former usefulness,” is a condition inseparable from the right or franchise granted to such company to cross the highway with its railroad, or to divert it from its location.

      2. While the company continues in the exercise of the franchise, the state has the right to compel it to perform the condition upon which the franchise was granted, by petition invoking the equity powers of the court, prosecuted by the attorney-general in the name of the state.
    3/ In enjoining the railway company from using the highway, where it has been diverted by the company from its location, but left in such close proximity to the railway as to make it dangerous for public travel, it is proper for the court to prescribe what change in the location shall operate to supersede the injunction.
    4. On allowing an injunction against the company from any further work on or obstruction of the highway, the court may, on final hearing, require the removal of the obstructions already placed thereon, in case the company refuse to restore such highway to its former usefulness.
    5. The remedy given to the county commissioners by the act of March 7, 1873 (70 Ohio L. 53), for the obstruction of a state or county road, is . cumulative, and does not affect the right of the state to maintain the present action.
    Error to tbe District Court of Montgomery County.
    Tbe original action was prosecuted in tbe name of tbe state by John Little, attorney-general, on the relation of James Crosby, Patrick McGee, and Francis M. Kemp, citizens and trustees of Mad River township, Montgomery county.
    Tbe object of tbe petition was to enjoin tbe defendant from obstructing a public county road, by tbe construction and operation of its railroad.
    It is averred, among other things, in tbe petition, that “ tbe defendant, not regarding tbe rights and interests of tbe public, is now engaged in constructing its road in such a manner, and at such an acute angle, that its track, if thus completed, will run some distance upon and for' tbe entire distance thence to tbe turnpike, parallel with, and but a few feet from, the traveled road-bed of said public road, as laid out and used by tbe public for tbe last fifty years. At no point from said proposed first point of contact to the turnpike, a distance, of over six hundred feet, is said proposed railroad track more than, say fifteen feet from tbe old road-bed of said public road, and generally along said distance the two are much nearer together than this. The crossing' of tbe sixty feet in width belonging to said road, is not completed from tbe southerly point of entrance thereon, until said railroad enters said Springfield pike, a distance of over six hundred feet, and travelers on said road to or from Dayton are compelled to cross said railroad track twice, the crossing at the pike being unusually dangerous.
    “ The proposed crossing at the south is at an angle of only five degrees with the traveled road-bed, and parties approaching it from the south-east will be unable to see or hear approaching trains, and even when on the railroad track, at said proposed crossing, will not be able to see a locomotive approaching from the west around the base of said hill, until it will be so near as to make it impossible for such parties to protect themselves from danger.
    “ The plaintiff alleges that the public road aforesaid is an exceedingly convenient and valuable highway, much used by the people of the neighborhood adjacent, and the citizens of the city of Dayton, for business and pleasure. If the defendant completes and operates its road as it now proposes at said point, said road will be very greatly damaged as a public highway ; its usefulness will be very greatly diminished and impaired ; and the said crossing will be exceedingly dangerous and unsafe to the traveling public, both upon the road and upon said railroad.
    “ The damage to the public will be irreparable, and not to be estimated in damages, and the present structure of the defendant, as already completed and contemplated, will be a continuing public nuisance.
    “ Plaintiff also alleges that this damage, injury, and nuisance is not the result of a necessity laid upon defendant in the prosecution of its enterprise, and that in this it is guilty of an oppressive and unwarranted use of its authority and discretion.
    “Plaintiff avers also that defendant has never taken any legal steps to appropriate or condemn a right of way over and upon said roadway; neither does it claim the right to thus interfere with, occupy, and use said roadway by virtue of any purchase or agreement.
    “ Wherefore plaintiff prays that defendant, by order of this court, be perpetually enjoined from any farther work within the boundaries of said public road; from completing the cou-« struetion thereof as now proposed; from running or operating its road with locomotives, while said public road is in its present condition, and from any use of said common road that will impair its usefulness to the public. That, upon the final hearing of this case, defendant may be ordered to remove the obstructions it has already placed in said public road, or may hereafter place therein prior to the final disposition of this case, and that it may be required, by order of this court, to place said public road at this point in a condition which will leave it as valuable and useful to the public as it was before it was interfered with as aforesaid by said defendant.
    “ And plaintiff prays for such further relief as may be necessary to guard and protect the public.”
    To the petition there was a general demurrer, which, being overruled, the case was heard upon testimony, and a decree rendered in favor of the plaintiff.
    The decree, in effect, enjoined the defendant from using or occujsying said public road by its railroad, and required the removal of the obstructions already placed thereon by the defendant, unless the latter, within a time prescribed, should so change the location of said county road as to make it reasonably safe for public travel. The change to be made which should operate to supersede the injunction and give the company the right to cross and occupy the road as previously located was prescribed in the decree.
    On error, prosecuted by the company, the judgment or decree of the court of common pleas was reversed by the district court and the demurrer to the petition sustained.
    The present petition in error is prosecuted for the reversal of the judgment of the district court, and the affirmance of that of the court of common pleas.
    . Thomas 0. Lowe, with whom was John Little, attorney-general, and John 1£. Spriggs, prosecuting attorney, for plaintiff in error:
    I. The injury complained of is admitted to be a public nuisance. It is declared to be such by statute. Swan & Critchfield, 881; Id. 279, § 33; see also Moshier v. Railroad,
      8 Barb. 427; Wood on Nuisances, §§, 250-257, inclusive. Public nuisances are to be dealt with by the state in one of two ways ; either by indictment or by information in equity. The general doctrine concerning informations in equity, applicable to cases of purpresture and public nuisances, is found in the following text-books and authorities: Story’s Equity Jurisprudence, §§ 920-924 ; 2 Johns. Cli. 381; Wood on Nuisances, § 811, et seq.; Attorney-General v. Hudson River R. R. Co., 1 Stockt. (N. J.) 526; Newark v. Elmer, 1 Stockt. (N. J.) 754; People v. Vanderbilt, 26 N. Y. 287; Attorney-General v. Cohoes, 6 Paige, 133 ; State v. Railroad, 1 Dutch. 436 ; People ex rel. Teschemacher v. Davidson, 30 Cal. 379 ; Hodges on Railways, 439-445; Attorney-General v. London & S. W. R. R., 3 De G. & Smalley, 439; Attorney-General v. Gt. Northern R. R., 4 Id. 75 ; American Law Register, April, 1877.
    II. When corporations are exceeding the legitimate scope of their authority, a proper preventive remedy is a suit by the attorney-general. High on Injunctions, § 770; Putnam v. Valentine, 5 Ohio, 187; Walker v. Railroad Co., 8 Ohio, 38.
    III. In all cases where the state is the proper party plaintiff, it is the law officer of the state who brings the action. This officer, at common law, is the attorney-general. Story Eq. PI. § 49. Section 19 of the attorney-general’s act of the state of Ohio (Swan & Oritchñeld, 90). A duty in this direction is also laid upon the prosecuting attorney. Swan & Critchfield, 1225, § 2.
    IV. By the act of March 7, 1873 (70 O. L. 53), county commissioners appear to have the right to sue for damages, and obtain an order for the abatement of a nuisance in a county road. This is simply an enlargement of their legal powers, and the remedy is only concurrent with, and not exclusive of, the right of the state to restrain the creation of the nuisance. Darling v. Peck, 15 Ohio, 65, 71. See also 20 Ohio St. 389, citing 1 Story’s Eq. § 80. Cram v. Green, 6 Ohio, 430. It would be a strange proposition to say that the state cannot restrain the creation of a nuisance simply because the county commissioners have boon authorized to proceed to have it abated. It is no objection to an injunction like this that its form is mandatory. It amounts to the same thing as restraining from maintaining. Ilodges on Railways, 620.

      D. B. Corwine, for defendant in error :
    This is not a case for injunction. The damage is not irreparable. Stewart v. Railroad Co. 14 Ohio, 358. Compensation is all the plaintiff is entitled to. 18 Ohio St. 169.
    The plaintiffs are not proper parties.
    1. The trustees are not authorized by law to make any such relation in reference to a county, road. 5 Ohio, 186; 2 Wall. 501; 10 Ohio, 369; and see State ex rel. &c. v. Commissioners, &c., 5 Ohio St. 497; Railroad Co. v. Commissioners, &c., 1 Ohio St. 105 ; State ex rel. &c. v. Turnpike Co., 16 Ohio St. 308.
    2..In all cases like the one presented in the petition, the county commissioners are alone authorized to bring suit, and the suit must be brought by and in the name of such commissioners. 70 Ohio L. 53, § 17.
   White, J.

The original petition in this case is in the nature of an information or bill in equity to • restrain the defendant from the permanent obstruction of a public highway, to the injury of'the public; and the first question arising in the case is,whether the attorney-general, in the name of the state, can maintain the action.

That courts of equity exercise jurisdiction in cases of purpresture and nuisance, of encroachments upon the public rights, as upon highways, rivers, and streets of towns, is well settled. The jurisdiction is predicated upon the broad ground of preventing irreparable injury, interminable litigation, a multiplicity of suits, and the protection of rights. Putnam v. Valentine, 5 Ohio, 187; Law of Nuisance by Wood, §769, and notes.

Under the system of equity pleading, prior to the adoption of the code, the proper remedy, in cases of nuisances purely public, was by information or bill in the name of the attorney-general, or of the government, instituted by him. Law of Nuisance, supra, § 811; Story Eq. Jur. § 923 : Story Eq. Pl.§ 8.

That 'the attorney-general was authorized to institute such suits in behalf of the public is abundantly shown by the authorities. Attorney-General v. Johnson, Mayor, Commonalty & Citizens of London, Wilson Ch. 87; People v. Vanderbilt, 26 N. Y. 287; People v. Davidson, 30 Cal. 379; Attorney-General v. Stewart, 21 N. J. 340; Attorney-General v. Forbes, 2 Mylne & C. 123.

When the suit did not immediately concern the rights of the crown or govennent, its officers depended on the relation of some person, whose name was inserted in the information as the relator. A relator, however, in such cases was by no means indispensable; and the attorney-general might, if he chose, proceed in the suit without one. Story Eq. Pl. § 8.

Section 19 of the act prescribing the duties of the attorney-general, authorizes him to “ prosecute any suit, information, or other suit, either at law-or in equity, in behalf of the state, or in which the state may be interested.” S. & C. 90. Under this provision of the statute, the attorney-general was fully authorized to maintain the action.

The petition describes the relators as citizens and trustees of Mad. River Township, in the county of Montgomery; and it is claimed by counsel for the defendant, that as such trustees they have no authority to act as relators. This may be conceded ; but they were also citizens, and as such were competent relators. Moreover, as already remarked, it was competent for the attorney-general to institute the suit without a relator.

The defendant was incorporated under the act of May 1, 1852, to provide for the creation and regulation of incorporated companies.. S. & C. 271.

Section 16 of the act is as follows : “ It shall be lawful for such corporation, whenever it may be necessary in the construction of such road, to cross any road or stream of water, to divert the same from its present location or.bed; but said corporation shall, without unnecessary delay, place such road or stream in such condition as not to impair its former usefulness.”

This provision of the statute forms part of the charter of the railroad company; and though subject to alteration or repeal, yet until so altered or repealed, it has the effect of a contract between the state and the company, in fixing the rights and liabilities of the latter.

The obligation of the company to place the highway in such condition as not to impair its former usefulness tr. the public, is a condition inseparable from the right or franchise granted to the company to cross the highway with its railroad, or to divert it from its location for the accommodation of the railroad. Railroad Co. v. Commissioners of Greene Co., 31. Ohio St. 338.

While the company continues in the exercise of the franchise, we entertain no doubt of the right of the state to compel it to perform the condition upon which the franchise was granted. This may be done, as was sought in this case, by petition invoking the equity powers of the court, prosecuted by the attorney-general in the name of the state. Such was the form of remedy in Attorney-General v. London & South Western Railway Co., 3 De G. & S. 439; and in The Same v. Great Northern Railway Co., 4 Id. 75.

In People v. C. & A. R. R. Co. (67 Ill. 118), and in People v. D. & C. R. R. Co. (58 N. Y. 152), the remedy was by mandamus. But no injunction was sought in these cases; and, without saying that mandamus might not have been resorted to in the present case, yet, the mode adopted was appropriate, and afforded a more flexible remedy.

The plaintiff having been found entitled to an injunction against the use of the highway by the railroad company, and the latter having diverted it from its location, but leaving it in such close proximity to the railroad as to make it dangerpus for public travel, it was proper for the court to prescribe what change in the location should operate to supersede the injunction. The condition was imposed after the final hearing of the cause, on testimony, and there is nothing in the record showing that the condition prescribed was unreasonable.

There was no error in the court after enjoining the defendant from any further work on the highway, requiring it, on failure to comply with the condition prescribed, to remove the obstructions already placed thereon by the company. The People v. Vanderbilt, supra, 295, 298 ; Corning v. Troy Iron Nail Factory, 40 N. Y. 191. The plaintiff, being entitled to a perpetual injunction, it was competent for the court to administer full relief.

Counsel for the defendant relies on the act of March 7, 1873 (70 Ohio L. 53), amending the act establishing boards of county commissioners, as furnishing the only remedy in cases of the obstruction of a state or county road.- That act authorizes an action to be brought to recover damages by the county commissioners.

We regard the act as merely cumulative, and not as in any way affecting the right of the State to maintain the present action. Darling v. Peck, 15 Ohio, 71; People v. Vanderbilt, 26 N. Y., 294, 295.

Judgment of the district court reversed, and that of the common pleas affirmed, with an allowance of further time to the defendant, within which- to comply with the order.


author: Boynton, C. J.

text:
    Elizabeth McQuade v. Sylvester H. Rosecrans.
    In an action to foreclose a mortgage, the defense was setup, that the mortgage was given to secure double the amount of the money loaned thereon by the mortgagee, with intent to defraud the creditors of the mortgagor. Held,

    1. That the consideration of said mortgage being entire and illegal, a court of equity will not aid its foreclosure.
    2. That the defense of illegality of consideration in such case, may be made by the mortgagor or by any person succeeding to his interest ; hence, it is error for the court to exclude testimony offered by the defendant to establish such defense.
    Error to the District Court of Scioto County.
    . The action below was brought by Sylvester H. Rosecrans against Elizabeth McQuade and John McQuade, administrator
      de bonis non of Hugh Reiley, to foreclose two mortgages executed by said Reiley and his wife Elizabeth, now the plaintiff Elizabeth McQuade, to secure the payment of certain promissory notes, amounting in the aggregate .to $1,600, executed by Hugh Reiley and delivered to Emanuel Thinpoint, the defendant’s testator, in the years 1857 and 1858. Said Elizabeth was sole heir of the said Hugh Reiley. The answer averred, among other things, that at the time said Hugh Reiley executed the said notes and mortgages, he was in embarrassed circumstances, and involved in debt beyond his means to pay, without resort to the real estate mortgaged, and that said mortgages were executed by said Reiley and received by said Thinpoint in double the amount actually loaned, for the purpose of placing the property mortgaged beyond the reach of the creditors of Reiley. The reply admitted that the consideration of said notes secured by said mortgages to the amount of $800 was never paid to said Reiley by said Thinpoint, but was a trust fund created by said Reiley in favor of said Elizabeth, who after the death of said Hugh Reiley and before said suit was commenced, intermarried with J ohn McQuade.' The reply denied that said conveyances were made with intent to defraud the creditors of said Hugh Reiley. On the trial in the district coiirt, to which the cause had been appealed, the plaintiffs in error called as a witness Cornelius McCoy, who stated that he was acquainted with Hugh Reiley in his lifetime, the former husband of the said Elizabeth McQuade, and counsel for defendants therein propounded to the witness the following question, viz.:
    “ What, if anything, do you know as to the pecuniary circumstances of Hugh Reiley, prior to his death ?”
    To which question the plaintiff, by 1ns counsel, objected, and the court sustained said objection, and the witness was not permitted to answer said question.
    Counsel for defendants then proposed and offered to prove by said witness, and other witnesses, that at the time of the execution of said notes and mortgages sued upon, the same were given for just double the amount of money actually loaned. That the said Hugh Reiley was being sued by various creditors and was in embarrassed circumstances and wholly insolvent, which facts were well known to both said Hugh Reiley and the said Emanuel Thinpoint, and that the object on the part of both said Reiley and Thinpoint in taking the notes and mortgages for double the amount loaned, was to cover up and pi’otect said real, estate so mortgaged from being levied on and. Sold in payment of the debts due to said creditors; that, in fact, the giving and taking of the said notes and mortgages did operate as a fraud on said creditors ; but the court ruled that said evidence and each part thereof was incompetent; that the contract, as between the said Emanuel Thinpoint and Hugh Reiley must be regarded as executed, and that the defendant, Elizabeth Reiley, was not in a position to raise the question of fraud upon the creditors of the said Hugh Reiley, and therefore excluded the testimony offered. Judgment having been given for the plaintiff below, the exclusion of said testimony is here assigned as error.

      W. A. Dutchins, B. W. Evans, and Duncan Livingstone, for plaintiffs in error :
    Where a party aids another in an illegal object, he shall not be assisted by the law, nor where contracts contrary to sound morals, public policy, or forbidden by law, are entered into, will they be executed by courts of justice. Spurgeon v. McElwain, 6 Ohio, 442; B. & P. 551; 1 M. & S. 593 ; Piatt v. St. Clair, 6 Ohio. 227; 1 Ohio St. 262 ; 6 Johns. Ch. 117; 3 Dana, 540 ; Bolt v. Rodgers, 3 Paige, 157; Roll v. Raguet, 4 Ohio, 400; Bradford v. Byers, 17 Ohio St. 396; Raguet v. Roll, 7 Ohio, pt. 1, 77. The same principle was laid down by the court in the case of Nellis v. Clark, 20 Wend. 24, and Smith v. Hubbs, 1 Fair, 71; Goudy v. Gebhart, 1 Ohio St. 262, in all of which cases the question is thoroughly considered, and to which the special attention of the court is called.
    A fraudulent grantee or mortgagee cannot enforce any claims to or against the property in a court of equity; his only remedy is at law. Mason v. Baker, 1 A. K. Marsh. 208; Caston v. Ballard, 1 Hill, 406; Gebhard v. Satter, 40 Iowa, 152; Shiley v. Jones, 6 B. Munr. 274; Wearse v. Peirce, 41 Mass. 141;

      Demeritt v. Miles, 22 N. H. 523; Wesfall v. Jones, 23 Barb. 9; Jones v. Comer, 5 Leigh, 350; Miller v. Murckle, 21 Ill. 152; Brookhover v. Hurst, 1 Met. (Ky.) 665. Neither can. an action be maintained on a note given with a fraudulent mortgage. Bookhover v. Hurst, 1 Met. (Ky.) 665.
    If a part of the consideration for transfer be merely a nominal or colorable consideration, contrived to hinder, delay or defraud creditors, the whole transfer is void. Floyd v. Goodwin., 8 Yerg. 848; Merrit v. Givens, 8 Ala. 694; Taitum v. Hunter, 14 Ala. 557; Burke v. Murphy, 27 Miss. 167; McKenty v. Gladwin, 10 Cal. 227; Fiedler v. Day, 2 Sandf. 594; Mead v. Combs, 19 N. J. Eq. 112; Hall v. Hayden, 41 Ala. 242; Albee v. Webster, 16 N. H. 362; Coolidge v. Melvin, 42 N. H. 510; Johnson v. Murcheson, 1 Winst. 292; Cameron v. McFarland, 6 American Dec. 566.
    If a mortgage is made with the intent to secure a part of the property to the mortgagee, and to cover the residue for the use of the debtor, it is void as to the whole. To render an instrument valid, it must be given in good faith and without any intent to defraud creditors, for an unlawful design vitiates the entire instrument and renders it void. Russell v. Winne, 37 N. Y. 591; Divver v. McLaughlin, 2 Wend. 596; Tichnor v. Wiswall, 9 Ala. 305; Goodhue v. Barrin, 2 Sandf. Ch. 630; Darwin v. Handley, 3 Yerg. 502; Young v. Pate, 4 Yerg. 164; Somerville v. Horton, 4 Yerg. 541; Swinford v. Rogers, 23 Cal. 233.
    A fraudulent stipulation in a written instrument vitiates the whole. The taint as to a part renders the whole instrument void. Whenever an instrument is good in part, and fraudulent in part, it is void altogether, and no interest passes under the part which is good. Hayslop v. Clarke, 14 Johns. 458; Mackie v. Cairns, 5 Cow. 547; Goodrich v. Downs, 6 Hill, 438; Albert v. Winn, 7 Gill, 446; McClurg v. Lecky, 3 Penn. 83; Robins v. Embry, 1 M. S. & Ch. 207; Jacot v. Corbett, Chev. Eq. 71; Howell v. Edgar, 4 Ill. 417; Dana v. Lull, 17 Vt. 390; Caldwell v. Williams, 1 Ind. 405; Pierson v. Manning, 2 Mich. 445; Green v. Branch Bank, 33 Ala. 643; Greenleaf
      v. Edes, 2 Minn. 264; Palmer v. Giles, 5 Jones Eq. 75; Spies v. Boyd, 1 E. D. Smith, 445.

      FL\ W. Fa/rnham, Theo. K. Funk, and M. A. Dcmgherty, for defendant in error:
    The argument of plaintiffs in error is: That this trust, created in favor of said Elizabeth McQuade, was, when created, for the purpose of defrauding the creditors of said Hugh Reiley; and that because both the so-called fraudulent trust and honest loan are secured by the same mortgages, the whole is so tainted with fraud, immorality, and illegality, that the loan even cannot be recovered ba.ck. Our answer is : The widow Reiley, now Elizabeth McQuade, holding title to this real estate as sole heir of the so-called fraudulent grantor, is not permitted to make such a defense. We cite, in support of this proposition: Burgett v. Burgett, 1 Ohio, 469; Tremper v. Barton, 18 Ohio, 418; Brown v. Webb, 20 Ohio, 389; Robinson v. Robinson, 17 Ohio St. 480 ; White v. Brocaw, 14 Ohio St. 339 ; Webb v. Roff, 9 Ohio St. 430 ; Irwin v. Longworth, 20 Ohio, 581; Jackson v. Garney, 16 Johns. 189; Jackson v. Cadwell, 1 Cow. 622. In all these cases the holding is, that voluntary conveyances, made for the purpose of defrauding creditors, are good between parties and their heirs, and only void as to creditors and purchasers.
    We have only been considering Mrs. McQuade’s case, in her relation to it, simply as heir-at-law of Hugh Reiley; but she, in fact, stands in a light much more prejudicial to the claim of the plaintiffs in error than she does as an innocent heir. She was not only a party to the mortgages, but was the only person who was to be benefited by the so-called fraud. She was the only person in any way interested therein to the extent of a penny, except creditors, and if fraud there was she was a party to it, and the principal party to it. We claim that, on general principles, she should be estopped from setting up any plea that will enable her to derive any benefit from her own fraud. We are sustained in this position by La Farge v. Herter, 9 N. Y. 241, as well as by the case of Irwin v. Long-worth, before referred to.
   Boynton, C. J.

¥c think the court erred in excluding the evidence offered to show that the object of the mortgagor in giving the mortgages sued on to secure double the amount of money borrowed, and of the mortgagee in receiving the same, was to defraud the creditors of the mortgagor. Section 97 of the crimes act (1 S. & C. 429) makes it a penal offense, punishable by line and imprisonment, for any person to make any grant or conveyance, with intent to defraud his creditors of their just demands.

The object of the testimony offered and rejected was to show that a part of the consideration of each of the notes the mortgages were given to secure was illegal, and consequently that the mortgages were void. If a part of the consideration of each note was illegal, the effect would be the same as if the entire consideration were illegal, and such effect would be to render the mortgages void. If any distinct note that either mortgage was given in part to secure, was not tainted with the fraudulent purpose to defraud the maker’s creditors, no doubt equity would follow the law and enforce to that extent the mortgage security; but where a part of the consideration, whether large or small, is affected with the fraud, the case falls within the operation of the principle stated and affirmed in Widoe v. Webb, 20 Ohio St. 431. Hence, the testimony offered was clearly competent, unless the view is correct which the district court seems to have taken, namely, that the contract evidenced by the mortgages was fully executed between the parties. That such is not the character of the contract in the view of a court of equity, is apparent from a moment’s reflection. In equity a mortgage is but a chose in action, given to secure the performance of some act, usually the payment of money.

Where anything remains to be done to carry into effect the intention of the parties, and which can only be accomplished through the aid of a court of equity where one of the parties refuses to perform the stipulation which he has agreed to perform, the contract is executory. A mortgage being conditioned for the payment of a sum of money, or the performance of some other act, if the money is not paid or the act performed, and the equity of redemption is sought to be foreclosed, the active aid of a court of equity is required. The payment of the mortgage debt, or the performance of the condition, •whatever it may be, can be secured in no other way.

And this aid is always, and uniformly, denied, when sought to enforce a contract the consideration of which is illegal. In such case the maxim applies, in pari delicto potior est conditio defendentis, not because the defendant’s rights are superior to the plaintiff’s, but coming into court with unclean hands it refuses to exercise its powers in his behalf. The case of Raguet v. Roll (7 Ohio, 77) was a scire facias on a mortgage to charge lands with execution. The mortgage was given to secure the payment of the sum of $500, the consideration of an agreement to suppress and prevent a criminal prosecution. The relief sought was denied, and expressly upon the ground that the consideration of the mortgage was tainted with illegality. That case, in principle, is not distinguishable from this, and is decisive of the question now under discussion. The remaining point is, that because Mrs. McQuade signed the mortgages, she cannot allege that the consideration of the same was illegal either in whole or in part. This question "was settled in Goudy v. Gebhart (1 Ohio St. 262), and was also directly involved in Raguet v. Roll. The rule is, that in so far as the contract is executory, the defendant, although in pari delicto, or any one acquiring an interest in the property affected by the contract sought to be enforced, may set up the illegality of its consideration in defense. No one is allowed to set up his own fraud or criminality to defeat an innocent party, but where both parties are participes criminis, the fraud may be set up and proved by either party, when the unexecuted portion of the contract is sought to be enforced against him.

Judgment reversed and canse remanded. '


author: Johnson, J.

text:
    The Pittsburgh, Cincinnati & St. Louis Railway Co. v. Barrett & Walton.
    1. Where goods are delivered to a common carrier for shipment, and received by him to be forwarded in the usual course of business, the liability of a common carrier immediately attaches ; and if they are lost by an accidental Are while in the carrier’s -warehouse awaiting transportation, he is liable, unless his common law liability has been limited by an-agreement with the shipper.
    2. But if the delivery is accompanied with instructions not to forward until further orders, or if anything remains to be done to the goods by the shipper, before they arc to be forwarded, such liability as a common carrier does not attach.
    3. The assent of the shipper to conditions in a bill of lading, or other contract for the carriage of goods, limiting the carrier’s liability, is binding upon him, when the loss happens without fault ór negligence of the carrier; but such assent will not be •implied or presumed from facts and circumstances which do not clearly show an assent to such conditions in the contract on which the action is founded.
    4 In the absence of satisfactory proof, showing that the shipper has, by assent and acquiescence, or otherwise, agreed to limit the liability of the carrier, the presumption is that he intended to insist on his common law rights.
    5. Neither usage nor custom, though known to the shipper, which he has not clearly assented to as a condition of the contract of shipment, can be set up to absolve a carrier from his common law liability.
    Error to tbe District Court of Greene County.
    This was an action below, by Barrett and Walton, to recover tbe value of lard and meat, wliicb wTas destroyed by fire, while in tbe custody of plaintiff in error.
    Only so much of tbe facts as relate to tbe lard need now be stated, as tbe action for tbe meat is not before the court.
    On February 22, and March 5, 1873, Barrett and Walton delivered to plaintiff in error, a common carrier by rail, one hundred and forty tierces of lard, to be shipped to Colgate & Co., New York, to whom it bad been sold, deliverable on tbe cars at Spring Yalley station, on tbe lino of defendant’s road. On tbe night of March 14, while tbe lard was stored in defendant’s warehouse, awaiting shipment, it was destroyed by an accidental fire, which originated in a drug store adjoining tbe warehouse, and which, without fault or negligence of plaintiff in error, communicated to and destroyed the warehouse and all its contents.
    The lard was delivered with instructions for immediate shipment. Nothing remained to be done to it by the shippers before being loaded into the cars and sent forward. This was to be done by the railroad company, without any further orders or directions from the plaintiffs.
    The claim is, that by this delivery to the carrier at the station, the liability of a common carrier attached, and covered this loss by accidental fire, while the lard was stored in the warehouse awaiting shipment.
    There is no complaint that the defendant was guilty of any neglect or default in not forwarding the goods before the fire occurred. It appears that this delay was occasioned by inability of the company, owing to a press of business at that season of the year, to furnish the necessary cars.
    ' The answer of the company admits its character as a public •carrier of goods, and the receipt, storage and destruction of the lard; but avers that, ever since its road was opened and oper-ated, some twenty-five to thirty years, to the present time, it had been its constant usage and custom, known to plaintiffs, to receive goods for carriage at this and all its other stations, upon the condition alone, that it would not be held to have received the goods until they were actually put on board the cars, and that it would not be liable for loss by fire, not the result of its own or its servants’ or agents’ neglect or default.
    It is averred that, with knowledge of all these things, the lard was delivered and stored in said warehouse “ upon the agreement and understanding that defendant should be liable ■only on said conditions,” and that when the goods were loaded upon the cars, a bill of lading was to be issued therefor, in ac■cordance with said custom, and containing said provisions.
    Those conditions material to the case are as follows:
    2. “ Freight carried by this company must be removed from "the station during business hours on the day of its arrival, or it will be stored at the owner’s risk and expense; and in the •event of its destruction, or damage from any cause, while in the depot of the company, it is agreed that said company shall not be liable to pay any damage therefor.”
    3. u It is agreed and is part of the consideration of this contract that the company will not be responsible for .... loss or damage to goods occasioned by providential causes or by fire, from any canse whatever, while in transit or at stations.”
    7. “ The company will not be responsible for accidents or delays from unavoidable causes. The responsibility of this company as a common carrier, under this bill of lading, to commence on the removal of the goods from the depot in the cars of the company, and to terminate when unloaded from the cars at the place of delivery.”
    The reply denies such a usage or custom, or knowledge thereof, or that there was an agreement or understanding as alleged.
    Upon a trial, there was a verdict for plaintiff, a motion for a new trial, which was overruled, a bill of exceptions taken by defendant, and a judgment which, on error, was affirmed by the district court. It is now sought to reverse these judgments, on the ground that they are contrary to the law and the evidence.

      J. J. Wincms, for plaintiff in error:
    A contract, restricting the liability of a common carrier, may be inferred from usage, and notice to the owner of the goods. 21 Geo. 526 ; 2 Redfield on Railways (4 ed. 1869), 136, note; Id. 97, § 4 and note ; 2 Starkie, 461; 3 B. & C. 601; 21 Vt. 140; 5 East, 507; Angell on Carriers (4 ed. 1868), 222, § 247; Id. 241, § 269; Id. 245, § 276; Story on Bailment (8 ed.), 530, § 557; Id. 542, § 571; 2 Shelford on Railways (Bennet’s ed.) 714; 31 Me. 228 ; 67 Pa. St. 211; Lacey’s Dig. 75, §§ 82, 83, 84, 85.

      Ojiarles Do/rlingion, with whom was Wm. J. Alexander, for defendant in error:
    1. As to liability of a common carrier, see 2 Redfield, 55, 56, 59; Swan’s Treatise (10 ed.), 454; 13 N. Y. 572; Angell on Carriers, 131, § 75.
    2. As to how a common carrier can restrict its common law liability. 2 Ohio St. 137; 4 Ohio St. 362; 28 Ohio St. 418 ; 38 Ill. 354; 2 Am. R’way, 340.
   Johnson, J.

That this lard was received by the defendant as a common carrier for immediate shipment to Colgate & Co.; that nothing further remained to be done by the shipper, or any further orders, directions or instructions were to be given before such shipment; that it was destroyed by an accidental fire while stored in the defendant’s warehouse awaiting shipment, which had been delayed by the defendant’s inability to obtain the -necessary cars, owing to a press of business at that season of the year, are facts conceded or clearly established by the testimony.

It also clearly appears that there was such general usage or custom as alleged, known to the plaintiffs, and that at the time of the delivery of these goods they did not receive or expect to receive a bill of lading therefor until the lard was loaded in the cars, and when one was issued, it would contain the conditions as to loss by fire, shown and set out in the answer.

The principles of law, applicable to the facts of this case, may be summarily stated as follows:

1. Upon a delivery and acceptance of goods, under .the circumstances stated, the common law liability of a common carrier immediately attaches, and if they are lost by fire, while awaiting shipment, the carrier is liable to the same extent as if the goods were in transit, unless his liability has been modified, limited or restricted with the consent of the shipper or owner of the goods. Miriam v. Hartford & New Haven R. R. Co., 20 Conn. 354; Trowbridge v. Ghapin, 23 Conn. 595; 2 Redfield on Railways, 63, § 174; Ford v. Mitchell, 21 Ind. 54; Gleason v. Transportation Co., 32 Wisc. 85 ; O'Bannon v. Southern Express Co., 51 Ala. 481; Grosvenor v. New York Central R. R. Co., 39 N. Y. 34; Illinois Central R. R. Co., v. Smyser, 38 Ill. 354 ; Burrell v. North, 2 Car. & Kir. 680 ; Schouler on Bailments, 381, ch. 4.

2. But if anything remained to be done to the goods by the shipper before they are ready for transportation, or if any orders,* directions or instructions were to be given before they were to be forwarded, such liability does not attach. Judson v. Western R. R. Co., 4 Allen, 520; Moses v. Boston & Maine R. R. 4 Foster (32 N. H.) 71; Blossom v. Griffin, 3 Kernan, 573; Michigan Southern R. R. v. Schurtz, 7 Mich. 515 ; St. Louis, &c. R. R. v. Montgomery, 39 Ill. 335 ; Lawrence v. W. & St. R. Railway, 15 Minn. 390; Watts v. Boston & Lowell R. R., 106 Mass. 466 ; Bannon v. Eldridge, 100 Mass. 457.

3. The carrier may limit his common law liability for losses happening without his fault or negligence, by a contract, either verbal or in writing. In an action against him as srich carrier, when he has received and undertaken to carry goods, the burden is upon him to establish such modified or limited liability, and to show, that the loss falls within the terms of the agreement. Graham v. Davis, 4 Ohio St. 362; Gaines v. Union Transportation Co., 28 Ohio St. 418.

4. The assent of the shipper or owner of goods, to conditions limiting common law liability, is not to be implied or presumed, but in each case of an action for a loss the assent must be shown by competent evidence, as in other cases of contracts. As the carrier is bound to receive and transport all goods offered for a reasonable compensation, subject to all the responsibility incident to the employment, the presumption is, in the absence of proof sufficient to remove it and to fix a different liability, that the shipper intended to insist on his common law right. New Jersey v. Merchant Bank, 6 How. U. S. 344; Graham v. Davis, 4 Ohio St. 376; Adams Express v. Noch, 2 Duval, 563; Railroad v. Man. Co., 16 Wall. 329.

5. In each case the question is, what are the terms of the contract of shipment ? Are they such as the law prescribes, or such as the parties agreed to ? This being a question of fact, usage or custom cannot be set up to absolve the carrier from his ordinary duties, which public policy, his general undertaking, or his special promise may have bound him to do. Cox v. Hiesley, 19 Penn. St. 243; McMasters v. Penn. R. R. Co., 69 Penn. St. 374; The Sultana v. Chapman, 5 Wis. 454; Cox v. Peterson, 30 Ala. 608 ; Schouler on Bail. 442.

Upon a careful review of the testimony, which consists mainly of the evidence by the plaintiffs themselves, one of whom had for many years been, and was at the time this lard was received, also the agent for the carrier, who received and stored the same, and was diligent as such, agent in trying to procure cars for shipping it, we think the allegation in the answer, to the effect that said goods put in said warehouse upon the agreement and understanding that the defendant should not be liable for a loss by accidental fire, was clearly made out. Such being the case, the common law liability is limited by this special agreement.

Where such is the case, there is no rule of law, nor principle of public policy, that forbids the enforcement of the restricted liability.

Judgment of the common fleas <md district court reversed, and cause remanded.


text:
    Pepper v. Sidwell, Administrator.
    In an action against an administrator, the objection that the claim sued on was not presented for allowance before the action was brought, is waived, where the administrator joins issue and goes to trial on the validity of the claim without objection.
    Error to the District Court of Brown County.
    The plaintiff, William A. Pepper, brought an action against W. N. Raney and N. H. Sidwell, as administrator of the estate of J ames Sidwell, deceased, on a promissory note joint in form and dated April 1, 1866, by which said Raney and James Sidwell promised to pay to the order of the plaintiff, the sum of $1,218.50, with interest at ten per cent, at twelve months from date. The petition did not aver that the note or claim had been exhibited to the administrator for allowance, and by him disputed or rejected, nor that eighteen months had expired from the date of the administration bond, or the further time allowed by the court for the collection of the assets of the estate of James Sidwell; nor were facts stated showing the case to fall within any of the exceptions of section 98 of the administration act.

      No demurrer was interposed to the petition, and the only-defense set up by the answer of N. H. Sidwell, administrator, was that James Sidwell was only a surety on the note, and that after the sam« became due, the plaintiff and Raney, the principal mater, entered into a valid agreement for the extension of the time of payment of the note without the consent of said intestate.
    Wherefore, he prayed to be dismissed with costs.
    Issue was joined by a reply, and the case went to trial to a jury. On the trial, the defendant Sidwell proved, without objection, that the probate court extended the time for the settlement of said James Sidwell’s estate, first for one year from March 24, 1868, and again from February 10, 1871, until October 10 of the same year. The suit was brought long before this time expired.
    The court was ashed by the defendant Sidwell, to instruct the jury as follows:
    “ If the jury find from the evidence in the ease, that the said defendant was appointed administrator in the month of October, 1866, and that on the 26th day of March, 1868, the probate court of Brown county, Ohio, on application of said administrator, gave him the additional time of one year to collect the assets of said estate, and that said time had not expired at the date of the commencement of this action against said administrator, then the verdict of this jury must be for the said defendant.”
    The instruction was refused and an exception noted. The jury found a verdict for the plaintiff, on which judgment was rendered in the court of common pleas, but which the district court reversed. This is a petition in error to reverse the judgment of the district court.

      White <& Waters, and Thomas <& Thomas, for plaintiff in error, cited: Gdlmin v. State, 12 Ohio St. 60, 65, 66 ; Nichols v. Patterson, 4 Ohio, 200-204; Mcursden v. Soper, 11 Ohio St. 503-506; Bisher v. Bichareis, 9 Ohio St. 495-498; Fee v. Big Scmdy Iron Go., 13 Ohio St. 563 ; Fvcms v. lies, 7 Ohio St. 233-236 ; Highway v. Pendleton, 15 Ohio, 735-753 ; Bicic v. State, 20 Ohio St. 228, 230.

      London c& Yov/ng and John G. Marshall, for defendant in error, cited: 1 Swan & Oritchfield, 584, § 98'; Keenam, v. Suxton, 13 Ohio, 41; Woodrow v. State, 1Y Ohio, 161, 169 ; Green v. State, 2 Ohio St. 5Y4; LLamerSke v. Kramer, 12 Ohio St. 252; Wright, 414; Stambaugh v. Smith, 23 Ohio St. 593, 594.
   Boynton, C. J.

We suppose that the judgment of the court of common pleas was reversed by the district court upon the ground that the claim sued on had not been presented to the defendant in error for allowance as a valid claim against the estate of James Sidwell, it having been shown in evidence •without objection, that the action was brought before the expiration of the time allowed by the probate court for the collection of the assets of the estate.

The petition contained no averment that the note or claim sued on had been exhibited to the administrator, and had been disputed or rejected by him; nor that the period of eighteen months, or the further time allowed by the court, if any, to collect the assets of the estate, had elapsed, before the commencement of the action; nor was there any averment either that the estate had been represented to be insolvent, and that the action was brought to settle the validity of a contested claim; or that the claim was one that would not be affected by the insolvency of. the estate, if such insolvency in fact existed. But the defendant neither demurred to the petition, nor didhe take any objection by answer that the claim had not been presented for allowance. On the contrary, he set up a defense to the merits of the claim, and went to trial on the issue joined thereto. In view of these facts, we think he should be held to have waived the right to rely on the failure of the plaintiff to show a presentation and rejection of the claim, as a defense to the action. That a petition against an administrator is defective that does not show that the claim was presented and disallowed, or that the necessary time has preceded the commencement of the action, was held in Hammerle v. Kramer, (12 Ohio St. 252); and it was also there held, that the petition might be demurred to as not stating facts sufficient to constitute a cause of action against the administrator. In commenting on the question as one of practice, Scott, C. J., said : “ As under the provision of this section, no action can be maintained against an administrator, by a creditor, till after the lapse of eighteen months from the date of the bond, unless in certain specified cases, we think the petition of the creditor should aver the necessary lapse of time. This is a condition essential, gmeralh/, to the plaintiff’s right of action. It is also affirmative in its character, and if denied, the burden of proof is on the plaintiff, and we think, unless it is averred, the plaintiff does not show even a prima facie right to sue.” This language had reference to the right of the administrator to raise the question of the plaintiff’s right to sue by demurrer, where the petition did not show that the claim had been presented and rejected, or the lapse of the time necessary to the maintenance of the action.

To the rule there laid down we fully adhere. In that case, the objection was timely taken and insisted on, that .the petition failed to show such facts as rendered the administrator liable to an action at the time the action was brought. The case, however, does not support the proposition that the administrator, who takes no objection either by demurrer or answer to the failure of the pláintiff to bring the case within the statute, may go to trial under a defense by which he contests the validity of the claim sued on, and in case of failure in such defense, may fall back and defeat a recovery on the ground that the claim was not presented for allowance, and consequently, that the action was prematurely brought. The provision, of the statute exempting the administrator from liability to be sued, until certain preliminary steps are taken, or a certain period of time has elapsed, is a privilege that may be waived. The object of the statute is to afford the administrator an opportunity to allow all valid claims against the estate, and thereby avoid litigation and expense. It was designed to protect estates from unnecessary costs and vexation where the administrator is satisfied that the claim is just and valid. Here the validity of the claim was in fact disputed, at the trial, and the liability of the defendant thereon denied, and the plaintiff subjected to large-expense and troftble in resisting a defense made to its merits:

To subject him to the expense and hazard of a trial, and then deprive him of a judgment, notwithstanding the issues were determined in his favor, upon the ground that tbe petition is defective in the particular mentioned, would be manifestly unjust. The conduct of the administrator, in contesting the claim, shows that the estate lost nothing by the omission to present the claim for allowance. In our judgment, where the petition fails to show the disallowance of the claim, or that the time allowed for the collection of the assets of the estate elapsed before the commencement of the action, and the defendant takes no objection either by demurrer or answer, but goes to trial upon issues in which he contests the validity of the claim, it is too late to insist on the non-presentation of the claim, or the premature bringing of the action, as a defense to the plaintiff’s right to recover. Other questions are made by the record, none of which, in our opinion, justified the district court in reversing the judgment of the court of common pleas

Judgment of the district court reversed and that of the common fleas affirmed.


author: By the Court.

text:
    Phillips, Assignee, v. Ross, et al.
    Where a probate judge removes an assignee in trust- for the benefit of creditors, and orders him to deliver to his successor the property and effects in his hands belonging to the trust estate, which order he fails to comply with, an action will lie upon the bond of such assignee, in favor of his successor, to recover the damages resulting from the failure to comply with such order.
    Error to the District Court of Muskingum County.
    In June, 1861, E. E. Henderson, by deed of that date, conveyed and assigned all his property to James P. Ross, in trust for the benefit of his creditors. Ross accepted the trust and executed the bond required by section 1 of the act regulating the mode of administering assignments in trust for the benefit of creditors (1 S. & C. 709), with liis co-defendants, John Bell and J. M. Lane, as Iris sureties.
    On May 29, 1866, Ross filed a statement of bis account in settlement of bis trust in tbe probate court, and upon exceptions thereto, tbe court found a balance of $766.44 in bis bands for distribution among creditors. Failing to account for this sum tbe probate judge subsequently removed him, as assignee, and appointed tbe plaintiff in bis stead, and oi’dered said Ross to pay over to tbe plaintiff tbe said sum of money, and interest thereon, from tbe date of said settlement.
    Upon tbe failure of Ross to comply with sucb order tbe plaintiff brought an action upon said bond to recover said sum and interest. To the petition setting out tbe facts, the defendants Bell and Lane demurred for want of facts sufficient to constitute a cause of action. Tbe court of common pleas sustained tbe demurrer, and dismissed tbe petition, and tbe district court affirmed tbe judgment. To reverse these- judgments is. tbe object of this proceeding in error.

      T. J. Taylor, for plaintiff in error, cited: 1 Ohio, 469; 7 Ohio, pt. 1, 268; 20 Ohio, 479; 5 Ohio, 200 ; 3 Ohio, 225 ; 4 Ohio, 101; 5 Ohio, 240.

      L. P. Ma/rsh, for defendant in error.
   By the Court.

Section 14 of tbe act regulating tbe mode of administering assignments in trust for tbe benefit of creditors (1 S. & C. 712), authorizes tbe probate judge to remove tbe assignee for good cause, and to appoint another in bis stead, and to make and enforce all orders necessary to cause tbe property and effects belonging to tbe trust estate to be delivered to tbe newly appointed trustee. Section 1 of tbe same act requires tbe trustee to whom tbe debtor’s property was assigned to enter into an undertaking payable to tbe state, in sucb sum and with sucb sureties as shall be approved by tbe probate judge, conditioned for tbe faithful performance, by said trustee, of bis duties according to law, and authorizes an action to be brought on said undertaking against tbe assignee and his sureties, by any person injured by the misconduct, or neglect of duty, of the assignee in regard to said trust. The failure of Ross, the assignee, to pay over to his successor the amount of the trust estate, found to be in his hands, and which the probate judge, on his removal, ordered him to pay over, was a clear neglect of duty, for which he and his sureties were liable on his bond, and liable, we think, to the plaintiff. The plaintiff was the representative of all persons entitled to the fund to be distributed, and, within the meaning of the statute, was a person injured by the failure of Ross to pay over the fund in his hands, belonging to the trust estate.

Judgment of the district court and of the court of common fleas reversed, and cause remamded to the common goleas for fu/rther froceedmgs.