author: Dickman, J.

text:
    Eaton & Co. v. Davidson.

      Transfer of goods fraudulently obtained, inpayment of a pre-existing debt.

    1. Where a purchaser fraudulently obtains goods from the owner, and transfers them to another in payment of a pre-existing debt, such pre-existing debt alone will not be a sufficient consideration to constitute the transferee a bona fide purchaser for value, as against the owner from whom the goods were thus obtained by fraud.
    2. D. by false and fraudulent representations, purchased and obtained goods on credit from E. Shortly after the purchase, to-wit: on August 7,1884, D. was insolvent, and on that day transferred the goods with other goods and merchandise to W. who, as a consideration for the transfer, cancelled and surrendered to D. an interest bearing note for $3,000, made by D. himself to W., dated October 8, 1883, and due in one year from date.

      Held: That W. was not a bona fide purchaser for a valuable consideration as against E.
    (Decided March 26, 1889.)
    Error to the Circuit Court of Williams County.

      Pratt, Wilson & Pratt, for plaintiff in error.
    An antecedent debt is not alone a sufficient consideration for the transfer of goods fraudulently obtained, so as to constitute such transferee a bona fide purchaser, as against the one from whom they were obtained by fraud.

      First — As to the reason of the rule governing the transfer of commercial paper: Carlisle v. Wishart, 11 Ohio, 172; 16 Peters, 1; Boxborough v. Messick, 6 Ohio St. 448 ; Bailey v. Smith, 14 Ohio St. 396; Ross v. Donald, 29 Ohio St. 473.

      Second — As to the rule governing the transfer of personal property other than commercial paper: Dean v. Yates, 22 Ohio St. 395; Harnet v. Letcher, 37 Ohio St. 356 ; Combs v. Chandler, 33 Ohio St. 178.
    These cases establish the rule in Ohio, that in order to prevent a person from whom personal property had been obtained by fraud from recovering the same, it is necessary:

      First — That he shall have intended to have parted with the title to the same; and,

      Second — That the same has passed into the hands of an innocent purchaser for present value, and under such circumstances as to make it inequitable to deprive him of it; so that there is called into play the principle that where one of two innocent persons must suffer, etc.
    This is far different from the rule applicable to the transfer of commercial paper.
    The whole foundation of the rule of bona fide purchaser of personal property is equitable; it is founded upon estoppel. Frost v. Lowery, 15 Ohio, 200.
    A person has the right to pay or secure one of his creditors, so 'he does it in good faith, though it takes all his property and leaves his other creditors with nothing. But he must do this with his own property, and not with the property of another. And property obtained by fraud, and without consideration, is not his property. Lewis v. Anderson, 20 Ohio St. 281 ; Jewett v. Palmer, 7 John. Chan. 68; Padgett v. Lawrence, 10 Paige, 180 ; Story’s Equity, 398, note.
    The transfer of personal property, obtained by fraud, in payment of a pre-existing debt, is not such a consideration as •constituted such transferee a bona fide owner, as against the •one so defrauded, who can recover the same from such purchaser. Post v. French, 13 Wend. 570; Townes v. Treadway, 53 N. Y. 650 ; Weaver v. Barden, 49 N. Y. 286; Barnard v. Campbell, 58 N. Y. 73 ; Same v. Same, 55 N. Y. 466 ; Padgett v. Lawrence, 10 Paige Ch. 170; Beaver v. Lane, 6 Duer, 232-240; Sargent v. Strain, 23 Cal. 359-362 ; Williamson v. R. R. Co., 29 N. J. Eq. 311—319; Hyde v. Ellery, 18 Md. 496-401; Stevens v. Brenan, 79 N. Y. 254-258; McLeod v. First National Bank, 43 Miss. 99; Prout v. Vaughn, 52 Vt. 451; Barrett v. White, 34 Miss. 56 ; Lynch v. Bucher, 38 Conn. 490.
    See also, Stoutenbourgh v. Conkle, 2 McCord, 33; Hicks v. Campbell, 4 C. E. Green, 183; Ash v. Putnam, 1 Hill, 302; Morey v. Walsh, 8 Cow. 238; Hicks v. Cleveland, 39 Barb. 573 ; Devoe v. Brandt, 53 N. Y. 452; Load v. Green, 15 M. & W. 216; Clough v. R. R. Co. L. R. (7 Ex.) 26 ; Morrison v. Ins. Co., L. R. (8 Ex.) 197 ; Wiggin v. Doy, 9 Gray, 97; Clements v. Doerner, 40 Ohio St. 632; Bloom v. Nogle, 4 Ohio St. 45.

      Pratt & Bentley, for defendants in error.
    The rules to be applied to a creditor buying in good.faith,,, and absolutely, the property, real or personal, of his failing or insolvent debtor, in full and absolute payment of his just claim or debt, differ greatly from those of anjr other purchaser of such insolvent debtor’s property. The creditor so purchasing his insolvent debtor’s property, real or personal, is not bound to look out for or take care of any other creditor’s interest, provided he takes no more of the debtor’s property, real or personal, than will fairly but fully pay his demand at the fair value of the property -; and takes such property in full payment of his demands, he may purchase any or all of his debt- or’s property, both real and personal, notwithstanding he knows of the insolvency of his debtor, and that the effect of said purchase will be to hinder and delay them in the collection of their debts, and to deprive the debtor of all means of paying such, his other creditors, and it cannot be said that one creditor is defrauded by the mere payment of another. Overhouse v. Hart, 21 Penn. St. 495; Crawford v. Kirksey, 55 Ala. The cases of Dean v. Yates, and Hamst v. Letcher, cited by plaintiff in error, decide that a party who obtain possession only of personal property by a fraudulent trick or device, and was clothed with no other rights therein, could confer no title on a third person.
    The Supreme Court of the United States, in the case of Swift v. Tyson, 16 Peters 1, utterly annihilates the doctrine of the insufficiency of a pre-existing debt to sustain the making or transfer of a negotiable bill or note, under due, to a bona fide purchaser in the usual course of trade. See also Carlisle v. Wishart, 11 Ohio 172, which contains the doctrine in Ohio, and has been generally adopted in American Courts, as it had been ever, in England. See also Roxborough v. Messick, 6 Ohio St. 448.
    The weight of authority seems to settle the principle that where the negotiable instrument of a third person is transferred before due, in payment of a pre-existing debt, and is bona fide received by the creditor, without notice, the defense as existing between the prior parties cannot be set iip against such holder. Bonn v. Central Bank, 2 Kelly (Georgia) Reports, 106 ; Valette v. Mason et al., 1st Indiana (Smith’s) Reports, 89; Holmes et al. v. Smith, 16 Maine, 177; Williams v. Little, 11 N. H. 66; Reddick v. Jones et al., 6 Iredell, 107; Swift v. Tyson, 16 Peters, 1; Brysh v. Scribner, 11 Conn. 388 (where the English cases are reviewed); Carlisle v. Wishart, 11 Ohio, 172.
    There is, therefore, no substantial difference between the consideration for the transfer of negotiable paper in payment of a precedent debt, or in payment of goods sold at the time of such transaction. Combs v. Chandler et al., 33 Ohio St. 178; Smith et al. v. Warman et al., 19 Ohio St. 145; Clements v. Doerner, 40 Ohio St. 632; Shanklin v. Commissioners, 21 Ohio St. 575; Hook et al. v. Pryor, 33 Ohio St. 19; Riley et al. v. Anderson, 2 McLean, 589; Finley v. Pritchard, 2 Sandf. 151; Gould v. Sage, 5 Duer, 266; Iron Works v. Smith, 4 Duer, 376.
    The Ohio cited cases establish that it is not out of the ordinary course of business to pay a debt; that a pre-existing debt, more especially where securities for such debt are surrendered, is in all commercial transactions a valuable consideration, and that if the purchaser paying such consideration to the fair value of the property bought has no knowledge of the infirmities inhering in his vendor’s title in the property sold him, whether real, tangible-personal, choses in action, or negotiable, or nonnegotiable instruments, he must be considered a bona fide purchaser in the usual course of business for a valuable consideration without notice of defects in his vendee’s title; and so, as having obtained a perfect title to the property bought. In Riley et al. v. Johnson et al. (8 Ohio, supra), a break was made to hold pre-existing debt not a valuable consideration in Ohio. Checked by McLean’s decision on the other note, and by Tyson v. Swift, 16 Peters, 1, Ohio took the other line in Carlisle v. Wishart, and the repudiated doctrine has found no favor here since.
    Our claims are abundantly supported by the following authorities : Young v. Lee, 12 N. Y. 551; Day v. Saunders, 1 Abb. 495; Brown v. Leavitt, 31 N. Y. 113; Pratt v. Coman,
      37 N. Y. 440; Clothier v. Adriance, 51 N. Y. 322; Patton v. Taylor, 44 N. Y. 371 ; Bank v. Crow, 60 N. Y. 85; Phœnix Ins. Co. v. Church, 81 N. Y. 218; Warner v. Link, 5 Johns. 289 ; Budsey v. Ray, 4 Hill, 159; Bank of Salina v. Babcock, 21 Wend. 499; Bank v. Scovill, 29 Wend. 115; Work v. Braton, 5 Ind. 396; Wright v. Bundy, 11 Ind. 398; Babcock v. Jordon, 24 Ind. 14; Rowe v. Hanier, 15 Ind. 445; McKnight v. Knisley, 25 Ind. 336; Straughan v. Fairchild, 80 Ind. 598; Ry. Co. v. Bank, 102 U. S. 14; Lee v. Kemball, 45 Me. 172; Manning v. McClure, 36 Ill. 490; Butters v. Houghwout, 42 Ill. 18; Mix v. Bank, 91 Ill. 20; Stevens v. Campbell, 13 Wis. 419; Shufeldt v. Pease, 16 Wis. 659; Rice et al. v. Cutler et al, 17 Wis. 363.
   Dickman, J.

Daring the years 1883 and 1884, Frederick Eaton, the plaintiff in error, was doing business as a wholesale dealer in dry goods and other merchandise at Toledo, Ohio, under the name and style of Frederick Eaton & Co.; and J. F. Davidson, during the same period, was engaged in business as a retail merchant, at West Unity, in Williams county, Ohio. Frank Davidson, a son of William E. Davidson, the defendant in error, had charge of the retail store at West Unity, was the 'confidential clerk and authorized agent of J. F. Davidson, ■bought all goods for his stock in trade, and had the general management of his business. On or about November 7, 1883 and at divers times thereafter down to and including April 24, 1884, J: F. Davidson, by and through the false and fraudulent representations of his agent and nephew Frank Davidson, obtained by purchase and on credit, a large quantity of goods •and merchandise from Eaton, and the same became a part of the stock in his store'. Although J. F. Davidson became cognizant of such fraudulent representations immediately after ■they were made, he did not repudiate them, but permitted Eaton to believe the same to be true, and to act upon them accordingly.

On August 7, 1884, J. F. Davidson was insolvent, and at that time was indebted to Frank Davidson, for wages, in the sum of $370; to Isadore F. Webb in the sum of $359.28, on anote executed to Webb by himself aud William E. Davidson as surety; to Belinda Grant in the sum of $522.75, on a note made to her by himself and William E. Davidson as surety; and was further indebted in the sum of $3,000, to his brother William E. Davidson, on' his promissory note to him for that amount, dated October 8, 1883, and payable in one year after date, with interest. He also at the time owed Frederick Eaton, on the goods which he had purchased of him through Frank Davidson, a balance of $1,156.63, with interest from June 5, 1884.

Being thus insolvent, J. F. Davidson, on August 7, 1884, proposed to William E. Davidson to transfer to him all the goods, wares and merchandise in his store at West Unity, if he would pay the Webb and Grant notes, pay Frank Davidson the amount due him, and cancel his own claim of three thousand dollars. The proposition was accepted — the contract was made — and J. F. Davidson turned the store and its contents over to William E. Davidson, who thereafter in pursuance of the agreement, cancelled his claim for $3,000 and paid the claims of Isadore F. Webb, Belinda" Grant and Frank Davidson.

It is conceded that the design of William E. Davidson in taking the stock of goods, was to secure himself from loss by reason of the note which he held for three thousand dollars, and to save himself harmless on accout of his liability on the notes to Webb and Grant.

Shortly after August 7, 1883, Eaton discovered the fraudulent character of the purchases from him by J. F. Davidson, and thereupon demanded the return of the goods from William E. Davidson, who was then in possession of the same, which being refused, Eaton at once commenced the original action in replevin for their recovery. Under the writ of replevin the sheriff took goods and merchandise valued at from $700 to $900, but through mistake some goods were taken to which at the trial Eaton made no claim. The case was tried to a jury. A verdict was rendered for the plaintiff for all the goods replevied, except those taken by mistake, and as to them, the verdict was in favor of the defendant William E. Davidson, assessing his damages at three hundred and fifty-five dollars and twenty-eight cents. Judgment was duly entered on the verdict, and the circuit court, on error, reversed the judgment.

The circuit court held that the court of common pleas erred1 in charging the jury as follows:

“But if you find that the consideration paid for such good» was in part the release of a pre-existing debt, owing by said John E. Davidson, to said William E. Davidson, as to such part and parcel of the consideration it was not, as to so much of the purchase-price of said goods covered by said pre-e'xisting debt, a valuable consideration such as would protect his title as an innocent purchaser, as to such part paid for by the release of such pre-existing debt; and to that extent, if you find the goods were fraudulently obtained from the plaintiff as claimed by plaintiff, then as to so much of said goods as were paid for in that way, the plaintiff would be entitled to' your verdict,”

And it was further held by the circuit court, that the court of common pleas erred in charging the jury, as requested by the plaintiff, as follows:

“But if the jury find that the defendant, William E. Davidson, so received said goods from John F. Davidson, sufficient in value to fully and fairly equal in amount the sum so assumed and paid by him, independent of the amount of goods replevied by plaintiff in this action, then the said William E„ Davidson is not entitled to recover herein, except as to such goods as were not sold and delivered by plaintiff to John F. Davidson by reason of said fraud, if you find there was such fraud as is claimed by the plaintiff, or were so delivered and were subsequently paid for by said John F. Davidson.”,

We do not think that the eourt erred in giving these instructions to the jury, nor in giving or refusing to give the other charges to the jury as assigned for error in the circuit court.

The - question to be determined in the case before us is, whether the defendant was a bona fide purchaser, for valuable consideration, without notice of the fraud by which his vendor obtained the goods replevied in the action. As against his vendee, Eaton, who was induced to part with his goods by fraud, can not be defeated of his right to rescind the sale and reclaim his property.

But such right can not continue as against any one who purchases the property from the fraudulent vendee, bona fide, for value, and without notice. As a general rule, a person who has no title to property can convey none, but where one sells property to a fraudulent vendee, and clothes him with the insignia of ownership, the purchaser in good faith and for value from’ such vendee — being an innocent party no less than the original vendor who has been defrauded — may demand the application of the rule, that of two innocent persons, he musí suffer who has placed the other in the power of the wrongdoer. In such case, the equitable, rule will estop the first’vendor from setting up his title.

But as said in Barnard v. Campbell, 58 N. Y. 79, “There is no good reason or equity in placing the burden of a fraudulent sale upon a bona fide vendor rather than upon a bona fide purchaser from the fraudulent vendee, unless the purchaser has parted with his money, or some value, upon the credit of possession or some evidence of title in the vendee, received from the original owner.” In other words, the purchaser who would acquire an indefeasible title, if he buys from one who has obtained the property through fraud, must buy for an adequate, valuable consideration.

Such a consideration, in our judgment, was not given for the goods in controversy, purchased from J. F. Davidson by the defendant. In apportioning the consideration given by the defendant, for the goods transferred to him August 7,1884, it is proper that the sum at that time assumed and paid by him — amounting to $1,251.98 — should be applied to that portion of the stock of goods to which the transferee would acquire an undisputed title. After such application, there remained the pre-existing debt of $3,000, in the form of a promissory note, applied as the consideration for the residue of the goods, including those replevied.

Where a fraudulent vendee transfers goods to a bona fide ■creditor in consideration of a pre-existing debt, no title is conferred as against the defrauded vendor, who may avoid the sale to the vendee, and recover the goods from the assignee or transferee. Root v. French, 13 Wend. 570.

In Weaver v. Barden, 49 N. Y. 286, the defendant received •certain shares of capital stock in a corporation, partly in payment of a precedent debt and partly for a consideration paid at the time. The court in rendering its opinion said, that the situation of the defendant was in no respect changed by the transaction, and that he was not to be regarded a holder for value, so far as the assignment of the shares was received in part payment of the precedent debt. In Sargent v. Sturm, 23 Cal. 361, it is stated as the rule, that he who receives goods from a fraudulent purchaser in payment of a pre-existing ■debt against such fraudulent purchaser, can not hold them against the vendor. See also Hyde v. Ellery, 18 Md. 496; McLeod v. First National Bank, 42 Miss. 99.

If the consideration of the purchase from the fraudulent vendee is the release of a pre-existing debt, the purchaser will ■be restored to what he may have yielded up, if the original ■owner who has been defrauded reclaims and recovers the property. The consideration having failed, it will be the right of the purchaser to be placed in statu quo, and the •courts, in the exercise of their remedial power, will be adequate to furnish him the needed relief, even though, as in the present case, there may have been a surrender of a promissory note. The purchaser will not, therefore, be materially affected in his legal rights, by the retaking of the goods by the original owner.

But, perhaps, it may be said, that although there was no new consideration in money or property, the defendant in ■surrendering the note for $3,000, relinquished a personal security, and thus gave a valuable consideration for the goods ■claimed by the plaintiff in error. The surrendered note was without indorser, guarantor or surety, and while it furnished •clearer evidence of the maker’s indebtedness than a promise ¡resting literally in parol, it was not. equivalent to a new and present consideration, but represented a pre-existing debt. It is undisputed, that to the extent of Eaton’s recovery of his goods and merchandise, the defendant may have his appropriate remedy against the fraudulent vendee, J. F. Davidson ; and although such remedy may be against an insolvent, the defendant’s situation in that regal’d, will not be different from what it was when he surrendered the note of three thousand dollars.

The defendant invokes the doctrine of equitable estoppel as against Eaton, and asks that the property of which Eaton was defrauded, shall be applied in part payment of his claim. It is not contended, or even intimated, that the defendant was induced to lend money or give credit' to J. F. Davidson, by reason of his ostensible ownership of the goods which the plaintiff had sold him, for the goods were not bought of the plaintiff until after the note of $3,000, was executed to the defendant. The facts would rather serve to indicate, that J. F. Davidson purchased the goods on credit from the plaintiff, in view of probably transferring them to his brother, the defendant, in payment of pre-existing obligations. Applying analogous principles established in this state, in the voluntary transfer of a negotiable instrument as collateral security for a pre-existing debt, this court, in Lewis v. Anderson, 20 Ohio St. 281, held, that where there is no consideration for a mortgage of real estate, other than- a pre-existing debt of the mortgagor, and the mortgagee is not induced thereby to change his condition in any manner, he can not be regarded as a purchaser for value, and therefore is not entitled to the protection against prior liens afforded in equity to bona fide purchasers, although he had no notice of such liens. If a pre-existing indebtedness was thus deemed an inadequate consideration from a mortgagee who held subject to the equity of redemption, still more so would it be from one who claims the absolute ownership of the property against all prior equitable lien-holders. “As a general rule,” says Chancellor Walworth, in Padgett v. Lawrence, 10 Paige, 180, “a purchaser of the legal title, who receives his conveyance merely in consideration of a prior indebtedness, is not entitled to protection ; because he has lost nothing by the purchase.” And in the same line of reasoning, Day, J., in Lewis v. Anderson, supra, says, “ The equity in favor of a bona fide purchaser is based as much upon the idea that he parted with value on the credit of the land, as it is that he was ignorant of the infirmity of the title. Hence the rule is not available to a judgment creditor who has no notice of a prior equity, as he comes in under the debtor, and upon no consideration like a purchaser.” The rule by which a pre-existing indebtedness of the mortgagor, as a consideration for a mortgage of real estate, would not be sufficient to constitute the mortgagee a bona fide purchaser for value, as against prior liens in equity of which he had no notice, may upon principle be extended to a transfer of personal property. By analogous reasoning it may be deduced, that 'a pre-existing debt will not be a sufficient consideration to constitute a purchaser of personal property fraudulently obtained by his vendor, a bona fide owner, as against the one from whom it was obtained by fraud.

In New York, the decision of the court of errors in the early and leading case of Coddington v. Bay, 20 Johns. 637, was re-examined by the same court in Stalker v. McDonald, 6 Hill, 93, and it was there declared as the principle established in Coddington v. Bay, that to protect the holder of a negotiable note whjch had been passed to him before maturity in fraud of the rights of others, he must not only have taken it without notice, but must also have parted with something of actual value, upon the credit or faith thereof; and that merely receiving it in payment of an antecedent debt, where by the settled rules of equity he would not be protected as a bona fide purchaser of property in other cases, was not sufficient. But in Carlisle v. Wishart, 11 Ohio, 172, it was held, that a precedent debt is a sufficient consideration for the transfer of a negotiable note before it falls due, to protect the holder without notice, against the equities of the original parties. And in Roxborough v. Messick, 6 Ohio St. 448, the opinion was expressad by the court, that the weight of authority seems to settle the principle, that where a negotiable instrument of a third person is transferred before due, in pay-merit of a pre-existing debt, and is bona fide received by the creditor, without notice, the defense existing as between the prior parties, can not be set up against such holder.

Thecrule indeed is apparently settled, that an antecedent-debt may be an adequate consideration in the transfer of negotiable instruments, when it would not be in a transfer of other personal property. The policy of the law is to facilitate the circulation of commercial paper, and thereby promote the interests of trade and commerce. Negotiable instruments-are excepted from the universal principle with regard to other property, namely, that only he who has a title himself to a personal chattel can convey one to another. And the bona fide assignee for value of even a stolen note, who takes it innocently, in the course of trade, and not overdue, and under circumstances of due caution, will have a valid and complete title in it, although his trasferer had no title whatever. 3 Kents’Comm. 79, and cases cited. “The necessities, of the commercial world require that bills of exchange and promissory notes should possess some of the attributes of money and exchangeable value ; and to clothe them with these attributes,, and to give parties confidence in their reception, it is necessary to protect them in the hands of a holder for value, from defenses growing out of the dealings of the prior parties. The rule frequently operates harshly and unjustly, and being founded on commercial policy, is, therefore, applicable only where the interests of trade require it.” Swan, J., in Roxborough v. Messick, supra. In Weaver v. Barden, supra, the court say, “ The claim to distinguish between commercial instruments and other choses in action and property interests has been based upon the supposed interests of commerce and the necessity of giving the freest circulation to instruments so-generally used in commercial transactions.” “ And why upon principle ” says Mr. Justice Story in Swift v. Tyson, 16 Peters, 20, “ should not a pre-existing debt be deemed such a valuable consideration ? It is for the benefit and convenience of the commercial world to give as wide an extent as practiable to the credit and circulation of negotiable paper, that it may pass not only as security for new purchases and advances, made upon the transfer thereof, but also in payment of and as security for pre-existing debts.” See also McLeod v. First National Bank, 42 Miss. 112. Obvious reasons therefore are not wanting for the distinction between commercial paper and other property, when the consideration for an assignment or transfer of the same is an antecedent debt.

In our opinion the judgment of the circuit court should be reversed, and that of the court of common pleas affirmed.

Judgment accordingly.


source: Caselaw Access Project

author: Speak, J.

license: Public Domain

text:
    Pope v. Pollock.

      Malicious prosecution of civil action— When actionable.

    An action may be maintained for maliciously, and without probable cause-instituting and prosecuting an action in forcible entry and detainer.
    (Decided March 26, 1889.
    Error to the Circuit Court of Hamilton County.
    The action below was commenced July 3, 1885, by the filing-in the court of common pleas of a petition which charged in substance that, in March, 1885, the plaintiff, by written agreement, leased of a Mrs. Brayton, through defendant as. her agent, for a term to expire April 1, 1886, a lot in the county of Hamilton, on which was a dwelling-house and other buildings; that the plaintiff immediately entered into possession, which has since continued except that, during a portion of the time, the defendant unlawfully kept plaintiff out of a portion of the premises.
    On the 11th of May, 1885, defendant, in her own name, instituted a suit in "forcible entry and detainer, before a justice of the peace of Cincinnati township, said county, for the recovery of possession of said premises, which suit terminated in a verdict for the plaintiff of “not guilty.”

      Afterward, on the 17th of June, 1885, defendant instituted ¡another like suit before a justice of the peace of Springfield township, said county, which also terminated in a verdict for this plaintiff of “not guilty.”
    Each of said actions was prosecuted maliciously, and without probable cause.
    The plaintiff, by reason thereof,' was greatly harrassed and .annoyed, much worried and troubled in mind, was injured in reputation among his neighbors, was caused great inconvenience and much loss of time, and put to considerable money •outlay in defending said actions.
    Then follows a prayer for judgment.
    To this petition a general demurrer was filed, which was •sustained by the court of common pleas, which judgment was .affirmed in the circuit court. To procure a reversal of these judgments, this error proceeding is prosecuted.

      Win. H. Pope, for plaintiff in error.

      John A. Shanh, for defendant in error.
   Speak, J.

Will the prosecution of a suit in forcible entry .and detainer, which results in a verdict for the defendant, where the same is prosecuted maliciously, and without probbable cause, afford ground for an action in the nature of a suit for malicious prosecution ? — is the question in- this case.

The more common causes for actions for malicious prosecution are groundless and malicious prosecutions of criminal ■charges. But that actions of this kind can be maintained where there has been an unjustifiable and malicious seizure of the property of the complaining party, as well as of the person, there is no question. Whether or not such an action may be maintained where there has been no deprivation of liberty, or of the possession, use, or enjoyment of property, has been the subject of much discussion, and of contrary holdings.

It appears that in England, by the common law, prior to the statute of Marlbridge, 52d Henry III. (1259), actions of this character were allowed, but since the passage of that statute, which gave the successful defendant judgment for costs .against the plaintiff, the right to maintain such actions has been uniformly denied, it being held that if one prosecutes an ordinary civil action against- another maliciously, and without reasonable or probable cause, an action for the resulting damage is not maintainable. So, too, in this country, many decisions of like tenor have been made. The courts have said that courts of law are open to every citizen, and that the costs which the defendant gets are a compensation for the wrong. If every suit may be re-tried on an allegation of malice, the evil would be intolerable, and the malice in each subsequent suit would be likely to be greater than in the first; and that if a defendant ought to have damages upon a false claim, then the plaintiff ought to have damages on a false plea, which would make litigation interminable. Beauchamp v. Troft, Keilw. 26; Fitzherbert’s Nat. Brev. 429; 1 Bac. Abr. 141; Savil v. Roberts, 1 Salk. 14; Buller’s Nisi Prius, 11; Parker v. Langley, “Gilbert's Cas. 163; Goslin v. Wilcock, 2 Wils. 305; 1 Am. Leading Cases, 261, note; Cooley on Torts, 189; Townshend on Slander and Libel, sec. 410; Taylor v. Wilson, Coxe, 362; Woodmansie v. Logan, 1 Penn. (N. J.), 68; Kramer v. Stock, 10 Watts, 115; Thomas v. Rouse, 2 Brev. 75; Ray v. Law, 1 Pet. C. C. 207; Potts v. Imlay, 1 South. 330; McNamee v. Minke, 49 Md., 122; Muldoon v. Rickey, 103 Pa. St. 110; Wetmore v. Mellinger, 64 Iowa, 751; Bitz v. Meyer, 11 Vroom. 252; Mayer v. Walter, 64 Pa. St. 283.

Where such suits have been maintained, the right has been placed upon the ground that taxable costs, including, as in most states, but the fees of witnesses and officers of the court, .afford a very partial and inadequate remuneration for the necessary expenses of defending an unfounded suit, and no remedy at all to repair the injury received. It is upon this principle, in part, that actions have even been sustained for malicious criminal prosecutions, in which no costs are taxed in favor of the accused. Where an action is brought and prosecuted maliciously, and without probable cause, it is an abuse of legal process, and the plaintiff asserts no claim in respect to which he has any right to invoke the aid of the law. It is a wrong to disturb one’s property or peace ; and to prosecute one maliciously, and without probable cause, is to do that person a wrong. The common law declares that for every injury there is a remedy, and to deny remedy in such case would violate-this wholesome principle. The burden of establishing both malice and want of probable cause will prove a sufficient check to reckless suits of this character. When the plaintiff sets the-law in motion, he is the cause, if it be done groundlessly and maliciously, of defendant’s damage, and the defendant but stands upon his legal rights when he calls upon the plaintiff to prove his case to the satisfaction of judge and jury. Vanduzer v. Linderman, 10 Johns. 106; Pangburn v. Bull, 1 Wend. 345; Whipple v. Fuller, 11 Conn. 582; Closson v. Staples, 42 Vt. 209; Marbourgh v. Smith, 11 Kans. 554; Bigelow on Torts, 2nd Ed. 71; Smith v. Smith, 56 How. Prac. 316; Bump v. Betts, 19 Wend. 421; Woods v. Finnell, 13 Ky. 628; Hoyt v. Macon, 2 Col. 113; Payne v. Donegan, 9 Bradw. 566; McCardle v. McGinley, 86 Ind. 538; Juchter v. Boehm, 67 Ga. 534; Lawrence v. Hagerman, 56 Ill. 68; Atwood v. Marger, Style, 378. See, also, an able review of the subject by Jno. D. Lawson, Esq., of the St. Louis bar. 21 Am. Law Reg. 281.

There seems, as will appear by. reference to these citations, abundant authority in other states of the Union to support the proposition that a suit may be maintained for damages arising-from the prosecution of an ordinary civil action, when the same is done maliciously, and without probable cause, but without disturbance to person or property. The precise question has not been made in Ohio, though in two cases (Tomlinson v. Warner, 9 Ohio, 104, and Fortman v. Rottier, 8 Ohio St. 548), this court has held that an action may be maintained for maliciously and without probable cause, sueing out and levying a writ of attachment. So, when one has been wrongfully deprived of the use of his land by the prosecution, maliciously, and without probable cause, of an injunction proceeding, the court held (Newark Coal Co. v. Upson, 40 Ohio St. 17), that an action for malicious prosecution will lie. The-language of the opinion, page 25, is: It may now be considered the approved doctrine, that, an action for the malicious prosecution of a civil suit may be maintained, whenever, by virtue of any order, or writ, issued in the malicious suit, the defendant in that suit has been deprived of his personal liberty, or of the possession, use, or enjoyment, of property of value.”

It will be noted that where damages for the prosecution, maliciously and without probable cause, of an ordinary civil action, are refused, one of the principal reasons given is, that the allowance of taxed costs is regarded sufficient punishment to the plaintiff for prosecuting, and recompense to the defendant for defending, such an action. In England, the taxed costs which may be awarded to a successful defendant, include not only fees of court officers and witnesses, but attorney’s charges for preparing the case for trial and the honorarium of the barrister who tries it, and, in a number of American states, a like taxation of costs prevails. But in Ohio the successful party in an ordinary action recovers only the fees of witnesses and court officers, leaving his own personal expenses .in preparing the case, in attending the trial, and his attorney’s fees for preparation and for trial, to be paid without reimbursement. Taxed costs are not here regarded as affording full compensation for expenses incurred, for in cases where damages may be recovered for malicious injury, fees of counsel, as well as court costs, are included in compensatory, and not punitive, damages. The reason for the rule having failed, there is much ground for saying that the rule itself fails.

But there is no necessity in the present case for a determination of the question whether or not an action will lie for the malicious prosecution of an ordinary civil action, without probable cause, where there is no arrest or seizure, for the petition of the plaintiff makes a different case.

In many of its aspects, an action in forcible entry and detainer is an extraordinary proceeding. It is summary in its character, and may become, when prosecuted wrongfully, excessively annoying and harassing. Having given three day’s notice in writing to leave the premises, the plaintiff may commence his action by filing a complaint with a justice of the peace, and in three days more the trial may take place. (See sec. 6599, Rev. Stats., and following.) The complaint need not be sworn to. If a continuance is asked by defendant for more than eight days, security for payment of rent is required. The action may involve the possession, by a defendant, of a home for himself and a dependent family. A failure to answer, or unsuccessful defense, may result in immediate and forcible ouster, and this without reference to the condition of the family, or the weather, or other surrounding circumstances. No appeal is allowed, nor is one action a bar to subsequent actions. The contingency of preparing a bill of exceptions must be anticipated, and counsel procured for that; else a review of erroneous holdings cannot be had. Error can be prosecuted only by leave of a judge, and such proceeding raises questions relating to competency of evidence only, and not questions touching the weight or sufficiency of the evidence. The justice is not even bound to sign a bill where the objection is only that the judgment is not sustained by sufficient evidence. If petition in error is allowed to be filed, the party must be ready with security, if exacted, to stay execution of the judgment against him.

Then, too, the plaintiff may select from several concurrent jurisdictions within the county. He may commence his action, if he so desire, in the township farthest removed from the residence of the defendant, or the one most inaccessible, thus requiring, it may be, his adversary to travel long distances, and to transport his witnesses at large expense. Failing in one action thus brought, he may continue prosecutions until his pocket-book, or his malice, or both, become exhausted. Plainly, in the hands of an unscrupulous prosecutor, possessed of abundant means, this kind of action may become grievously oppressive, and it is idle to say that the small bill of costs before a justice is either a sufficient punishment to inflict upon a 'malicious prosecutor, or constitutes any recompense to a wronged defendant. The statute gives to such plaintiff the right to resort to his action as often as he may choose, and to bring it before any justice within the county, but this implies no right to prosecute maliciously and without probable cause. A groundless action, prosecuted with malice, is never justifiable, and a wrong suffered by such prosecution in forcible entry and detainer should not be without remedy.

Nor is there force in the objection, as applied to this case, that intolerable evils would arise from a multiplicity of suits thus encouraged. The law-making power has seen fit to provide by this statute that a judgment shall not be a bar to any after action. We have, in this provision, legislative declaration to the effect that evils may not be expected to follow repeated trials of issues under this statute. In consonance with this policy, it may be reasonable to conclude that, if repeated actions to determine the right to possession will not work intolerable evils, a review of the facts by a suit for malicious prosecution will not have that effect. At all events, the right to so review will naturally tend to check any evils that might flow from a misuse of the statutory right to repeated trials.

Judgment reversed.


author: Bradbury, J.

text:
    Hills v. Ludwig et al.
    Error— When considered — Evidence—Rejection of— When error — Adjoining landowners — Boundary lines — Uncertainty of — Petition in real actions — Amendment of after statute of limitations has run, not allowed.

    1. - Where the error complained of in this court is that the trial court omitted to charge the jury a proposition of law involved in' the case, and the court’s attention was not directed to it except by one of a series of propositions, all of which the court refused to give, and the alleged error was not included in the motion for a new trial, or assigned in the circuit court for error, it will not be considered here, unless for some special or peculiar reasons, affirmatively appearing upon the record.
    2. Where evidence, if admissible at all, is evidence in chief, and the party omits to offer it then, but, without explanation of the omission, offers it in rebuttal and it is then rejected by the trial court, this court will not pass upon its competency.
    3. The acts and admissions of the grantor of lands, respecting a disputed boundary line, done or made by him after he has parted with his title, are not admissible against his grantee; and the rule is not changed, although he retains the ownership of other lands affected by the same disputed boundary line, and his acts and admissions relate to his own lands.
    4. Where the adjoining proprietors of lands adjust and settle a disputed boundary line between them, the agreement for that purpose need not be such as would of itself transfer title or right of possession to lands.
    5. To enable adjoining proprietors to adjust and settle a boundary line between their lands, it is not nce.ssary that the line should be so uncertain as to be incapable of exact ascertainment; it is sufficient if there is such uncertainty as leads to a bona fide dispute respecting its location.
    6. Where the plaintiff in a real action omits to describe in his petition al] the lands detained from him by the defendant, he can not by an amendment to his petition, made after the statute of limitations has run as to the land omitted, include such omitted land and have the amendment relate to the filing of the petition, so as to defeat the plea of the statute as to the lands brought in by the amendment.
    (Decided March 26, 1889.)
    Ekror to the Circuit Court of Crawford County.
    On January the 11th, 1881, Solomon Ludwig, the defendant in error, began an action of ejectment against Jedediah Hills, the plaintiff in error, in the Crawford County Court of Common Pleas, to recover possession of a strip of land described in his petition. On April 23d, 1882, he filed in said action an amended petition to recover an additional strip oí land described therein.
    The defendant answered:

      First — Denying, in substance, all the injuries charged against him.

      Second — That the statute of limitations of twenty-one years had attached.

      Third — That the true line between his lands and those of Ludwig was uncertain ; that in the year 1860 an agreement was entered into by Ludwig, the plaintiff, and those under, whom the defendant, Hills, claims title, to establish an agreed line, and that pursuant thereto a line was, in March of that year, established, to which the parties have since conformed.

      Fourth — That at the time this line was established, the line on the west side of Ludwig’s land being also uncertain, was, as a part of the same plan, also established in the same way, giving to Ludwig the full quantity of land to which he was 'entitled; that Hills owns the land on the west as well as that on the east of Ludwig ; that when Hills bought on the east of Ludwig he surrendered to him on the west side a strip substantially equivalent to the strip on the east side now in dispute, all which was done to adjust the lines pursuant to the •said agreement, and that Ludwig claims and holds the strip on the west, while attempting, by this action, to recover the ■strip on the east.
    The averments of the third and fourth defenses are put in issue by Ludwig in his reply.
    Any further statement of facts necessary to a decision of the questions presented by the record, will be found in the ■opinion.'

      S. A. Harris and B. BlaJcford, for plaintiff in error.

      Finley, Eaton & Benned. and W. Z. Davis, for defendant in ■error.
   Bradbury, J.

The lands of Ludwig lie west, and those of Hills, east of the disputed line, and this line was originally identical with that between sections five and six in which the lands lie. This section line had been the subject of dispute between adjoining proprietors for many years prior to 1860. Early in that year an agreement was made between a number of land owners in those sections for a survey of this line, which survey, pursuant thereto, was made in March 1860, by Horace Martin, the then county surveyor. At the same time, and as part of the same plan, the north and south middle line of section six was surveyed. By this survey both lines were located further west than they were before, so that Ludwig gained thereby on the west, substantially the quantity of land he lost on the east. Soon thereafter Ludwig, Hills’ grantors and some other adjoining owners, began to occupy and improve their lands according to the new line (which was called the Martin line), though with considerable dissatisfaction and some litigation between certain of the adjoining proprietors respecting it. Soon after this line was, established, Hills purchased lands lying east of and adjoining those of Ludwig, and also a tract adjoining Ludwig on the west, both of which be has continued to occupy and improve ever since, up to the Martin line. Twenty years and ten months elapsed from the time Ludwig went out of possession of the lands in dispute until this action was begun, and more than twenty-two years elapsed before the amended petition was filed. The trial resulted in a verdict and judgment for Ludwig for the recovery of all the lands described in his amended petition. Hills took a bill of exceptions which exhibits, among others, the facts above stated. It also discloses certain exceptions taken by Hills to the rulings of the trial court in admitting and rejecting evidence, and in charging and refusing to charge the jury certain propositions of law. The judgment was affirmed by the circuit court, whereupon the defeated party brought the case here for review.

Some of the interesting questions, argued by counsel for plaintiff in error, are not presented by the record in a way to enable this court to review them upon their merits. This is notably the case with respect to two important questions— alluded to by counsel for plaintiff, in his brief — that of estoppel, and that relating to the rejection of the evidence of Mill-iron, respecting the acts and admissions of the plaintiff below, Ludwig.

The question of estoppel is raised by the fourth defense. That defense, plaintiff in error claims, sets forth facts which estop Ludwig from asserting his title to the lands in dispute; or at least, that he ought not to be permitted to do so, even if he was honestly mistaken in supposing the Martin line to be the true one, until he first offered to yield up to Hills the equivalent therefor, which he still holds on the west side of his farm ; and there is evidence tending to establish this defense. It is a grave question whether Ludwig can be permitted to repudiate the Martin line on one side of his laud, where it cuts a strip from his farm, and cling to it on the other side, where it gives him a strip of land that otherwise yrould belong to Hills. The court said nothing to the jury on this question that is applicable to the facts as Hills claims. them to be, and there is nothing in the record to show whether it was considered by the jury or not. This omission, standing alone, does not constitute error, for which the judgment will be reversed by this court. Taft v. Wildman, 15 Ohio, 123; Jones v. Ohio, 20 Ohio, 34; Schryver v. Hawkes et al., 22 Ohio St. 308 ; Smith v. R’y, 23 Ohio St. 10.

The defendant below, however, did request instructions on this point which the court refused to give to the jury; but these instructions, while fairly applicable to a state of facts testified to by Hills, were not, at least, fully applicable to the facts pleaded by Hills in his fourth defense; and for that reason the refusal was not error. In addition to this, Hills, when he requested the charge on this point, also requested the court to give to the jury eight other propositions of law, some of which being unsound, were properly refused; while others, containing sound legal propositions, should have been given to the jury if presented by themselves. All, however, were refused; but the exception thereto being general, it failed to point out to the court the error of which complaint is'now made, and for that reason error can not be predicated on this action of the trial court. Railway v. Probst, 30 Ohio St. 104; Everett Weddell & Co. v. Summers, 32 Ohio St. 562; Powers v. R’y Co., 33 Ohio St. 429.

It remains apparent, however, that the court did not instruct the jury on. this point, notwithstanding its attention was called to the matter, though done through the medium of an instruction it was not error to refuse to give to the jury; and it may be said that the record raises the question whether it is error for the court to fail to give instructions on a question involved in the trial, when, by any means, its attention is directed to it. The record, however, does not disclose that this question was made to the trial court on the motion for a new trial, or to the circuit court on error, and there is nothing in this case that calls for us to disregard the general rule, that errors, not assigned in the courts below, will not be considered here. Levi v. Daniels, 22 Ohio St. 38. The rule applies with special emphasis to the case at bar, for the additional reason, that that omission is not especially assigned in this court of error, but is insisted on in argument only, as an error appearing on the face of the record. We, therefore, hold that the question- is not properly before us for review.

Respecting the evidence of the witness, Mill iron, it may be said, that while, as a general proposition of law, the pertinent acts and admissions of a party are competent evidence against him, yet, unless they are offered at the proper time, it is within the discretion of the court to admit or reject them; and unless the record discloses an abuse of discretion, its action will not be reviewed on error. Webb v. State, 29 Ohio St. 351.

If, on the trial, Milliron’s evidence was competent at all, it was evidence in chief for the defendant, Hills. He did not offer it then, and without explaining the omission, offered it in rebuttal; under these circumstances the actio.n of the trial court in rejecting the evidence does not appear to be erroneous.

The trial court admitted in evidence, over the objection of Hills, the record of an action brought in 1865, by Rufus Page, against the plaintiff below, Ludwig. This action related to the north and south line (before referred to), that divided section six into half sections, and which was run and established at the same time, and was part of the scheme of the “Martin” survey. If that line had been placed too far west by the Martin survey, then the line in dispute had been also placed the same distance too far west. This record shows that Page, under whom Hills claimed title, alleged that the middle line of section six was too far west, and that he prevailed in the action. Now, this allegation and adjudication coming to the ears of the jury, could not be otherwise than prejudicial to Hills; and, if incompetent evidence, is error to his prejudice. It is not merely an admission, but a sworn statement made by one under whom Hills claims title, that the line is not where Hills claims it to be. Now, if it had been made while Page owned the land, especially if it related to the line of the land Hills afterward bought, it would have been admissible against Hills. But this was not the case; it related to other lands, and was made long after Hills had acquired his title. Page, at the time, had no interest in this land of Hills’, and could not, by any act, admission or statement, make evidence against Hills. It was therefore error to admit the record in evidence. For the same reasons the agreement between Page and Ludwig, and the record of the action between Ludwig and Frey, were incompetent evidence, and their admission erroneous.

The defendant below specially excepted to certain propositions contained in the charge of the court; these charges are ¡properly before us for review and will now be considered.

Hills excepted to the rule laid down by the court inspecting .the method of retracing the line between sections five and six. 'This was an important question in the trial court, and might .have been decisive, in view of the evidence then adduced; but we have no assurance that the evidence at the next trial will be the same that it was at the last one in this respect. This is a species of evidence peculiarly liable to change. A mew line, run even by the same surveyor upon the same principle, may vary considerably from the former line run by him, according to the method approved by the court below. New corners may be found, or new lines run, or new facts ■discovered that would render the view this court might take wholly inapplicable; and, besides, the other principles laid ■down by the court are likely to be decisive of the rights of -these parties.

The court charged the jury that the contract or agree.ment, by which a boundary" line could be established, must be one “ That would transfer the title or right of pos■session to defendant Hills.” This was stating the rule too .strongly against Hills. The second clause of the syllabus, in Bobo v. Richmond, 25 Ohio St. 115, reads: “The fixing of a ■boundary line by parol is not within the operation of the ■statute of frauds. No estate is thereby created; but where the boundary line is fixed by the parties they hold up to it by virtue of their title deeds, and not by virtue of the parol .transfer.” The language of the charge is calculated to impress the jury with the belief that an agreement to adjust and settle a boundary line must be one sufficient to transfer title •or right of possession by its inherent force, independent of the -acts of the parties pursuant thereto. This is contrary to the syllabus above quoted. Hills did not rest his defense upon the agreement alone, but upon it and the acts of the adjoining owners, done pursuant thereto, and the charge ought to have-been as broad as the defense in this particular.

The court also charged the jury that: “When the line between owners of land can not with certainty be ascertained, and said owners, in view of this, agree upon and establish a line, such an agreement settles the line.” It is-claimed in argument, that the defendant below was not prejudiced by this charge, even if it is incorrect, because no evidence was given on the trial, which tended to prove any such agreement. To this claim it may be said, that what the parties to this survey said and did, was before the jury, and it was competent for them to determine what their object was in causing it to be made. Ludwig claimed their purpose was to-ascertain the true line; that he supposed they had done so;, that he knew no better for many years thereafter; and that when he discovered the mistake he endeavored to correct it. Hills, on the other hand, claimed the purpose of the survey was not to find the true line, but to adjust and settle one which had long been the subject- of contention, and about which there was then a dispute. This being the issue, the court, we think, placed the right of adjoining proprietors to adjust and settle disputed boundaries on too narrow a basis.

It is not essential that the disputed boundary line be incapable of ascertainment; but if it has become the subject of dispute and contention, and the parties with a view to settle-the dispute, agree upon and adjust a line between their land, it is a finality and can not be disturbed — though they after-wards learn that the true line could have been found. Avery’s Lessee v. Baums Heirs, Wright 576 ; Walkr v. Lessee of Devlin, 2 Ohio St. 593.

This view is entirely consistent with the principle that where adjoining proprietors, in attempting to find the true line between them, by mistake fix upon an incorrect one, they may repudiate the spurious line on discovering the mistake, and occupy to the true line at any time before the statute of limitations has run.

The court further charged the jury that this action was commenced January 11th, 1881; it is conceded that was 20 years and 10 months after the plaintiff went out of possession of the premises, therefore the statute of limitations does not apply.” This statement ignores the fact that part of the lands sought to be recovered were not described in the original petition. Over 22 years had in fact elapsed from the time plaintiff below went out of possession, before he filed his amended petition, so that, as to the land then for the first time included, the statute of limitations had attached, and the defendant’s title made perfect by lapse of time, unless the amendment had a retro-active operation, and went back, by relation, to the original petition. This proposition, we think, is not supported by either reason or authority.

Judgment reversed.


author: Minsh.a.ll, C. J.

text:
    The Lagonda National Bank v. Portner.

      -Check given for money lost at gaming — Absolutely void in hands of innocent holder for value — Sec. 4269 Rev. Stats, construed.

    The indorsee of a check given for money lost at a game of cards can not recover upon it against the drawer, though a bona fide holder for value without notice of the vice in the consideration. A check so drawn is within the provisions of § 4269, Revised Statutes, and “absolutely void and of no effect.”
    (Decided April 23, 1889.)
    Error to the Circuit Court of Hardin County.

      J. Warren Keifer, for plaintiff in error.
    The plaintiff was entitled to recover upon the pleadings under our code of practice. Rev. Stats., sec. 5328; Tootle v. Clifton, 22 Ohio St. 247; Buckingham v. McCrackin, 20 Ohio St. 287; Herman v. Kelly, 14 Ohio, 502.
    Giving the words used in the gaming act, their fixed meaning and legal signification, bank checks are not included in it. Hurd v. Robinson, 11 Ohio St. 232; Morrison v. Bailey, 5 Ohio St. 13; Story on Promissory Notes, (3rd Ed.), secs. 487 to 491; 2 Parsons on Notes and Bills, p. 5 ; Merchants’ Bank v. State Bank, 10 Wall. 604; White v. Ambler, 8 N. Y. 170; Terrill v. Auchauer, 14 Ohio St. 80; Rev. Stats. U. S., secs. 3418, 3420-2; 2 Parsons on Notes and Bills, pp. 85-86, Edwards on Bills, p. 59 ; State v. Peck, 25 Ohio St. 26 ; Grogan v. Garrison, 5 Ohio St. 50; Shultz v. Cambridge, 38 Ohio St. 659; Whiteman v. Chase, 5 Ohio St. 528; Story on Promissory Notes, (3rd Ed.), sec. 489; Baker v. Lawrence, 27 Ohio St. 418; Williams v. Coal Co., 37 Ohio St. 583; Methurin v. Stone, 37 Ohio St. 49; Loudenback v. Collins, 4 Ohio St. 251; Bank v. Lane, 8 Ohio St. 405; Moore v. Vance, 1 Ohio, 1 ; Turney v. Yeoman, 14 Ohio, 207.
    The statute does not render absolutely void (even though bank checks were included in its terms) negotiable instruments, as against innocent parties. Bailey v. Smith, 14 Ohio St. 396; Crawford v. Spencer, 4 South Western Reporter, 713, Rev. Stats. 3171, 3173, 3174; Bank v. Bank, 10 Wall. 604; Swift v. Tyson, 16 Peters, 1; Story on Promissory Notes, sec. 498; Burgett v. Burgett, 1 Ohio, 469; Brigel v. Starbuck, 34 Ohio St. 280; Miller v. Payne, 1 Ohio, 251.

      F. C. & J. W. Dougherty, for defendant in error.
    There is only one question in this case, to-wit: Is the instrument sued upon void in the hands of a bona fide holder,, under section 4269, Rev. Stats. ?
    We maintain the affirmative of this proposition, and in support of the same, cite the following authorities: Daniel on
    Negotiable Instruments, secs. 197 and 807, and numerous-cases there cited.
    It will be noted that section 4269, declares all contracts, promises, agreements, etc., “absolutely void and of no effect.”

   Minsh.a.ll, C. J.

The action below was upon the drawing of a check by the defendant on the Kenton Savings Bank,, payable to one Caldwell, or his order, for the sum of $200. The plaintiff,' the owner by indorsement, presented the check to the Savings Bank, for payment; payment was refused and due notice given of non-payment. The defendant answered that the consideration of the check was small pieces of celluloid called “ checks, ” representing money, betted and lost by him upon a game of chance played with cards. Any knowledge of this, as well as the fact itself, was denied in the reply.. On the trial the court in substance charged the jury, as appears from the bill of exceptions, that though the consideration of the check was for money lost in a game of chance, the plaintiff would be entitled to recover, if it had no knowledge of the same; and, observing to the. jury that it was conceded that the plaintiff was a bona fide holder without knowledge of the consideration for which the check had been given, directed a vei’dict for the plaintiff for the amount of the check and interest. The judgment rendered upon the verdict was reversed by the circuit court, and the object of this proceeding is to-obtain a reversal of the judgment of the latter court.

It is provided in sec. 4269, Rev. Stats., that, “All promises, ’ agreements, notes, bills, bonds, or other contracts, * * * when the whole, or any part of the consideration of such promise, * * * is for money, * * * won or lost, * * * upon any game, * * * whatsoever, .* * * shall be absolutely void, and of no effect.”

It is claimed that a check is not included in this statute. But this, as we think, will hardly bear serious discussion. A check is at least a contract, for it imports an agreement upon the part of the drawer to pay it if on presentment to the drawee it is not paid, and due notice is given him of such nonpayment. The action below was upon the obligation so assumed, and the only support this obligation has is the consideration for which the cheek was drawn.

We do not, however, understand that the common pleas placed its judgment on this ground. It assumed, and so charged the. jury, that the plaintiff could recover if he was an innocent holder for value, although the consideration for the drawing was money lost at cards. In this we think the common pleas erred, and that the judgment of the circuit court should be affirmed.

Notwithstanding the general tendency of courts to construe the word void ” as “ voidable ” only when used in statutes that affect contracts made in disregard of their provisions, yet where a public policy is to be subserved, as the suppression of usury or gaming, the settled rule-is to give to the language employed -its full force and effect. The rule with its limitations is thus stated by a very reliable author on the interpretation of statutes: In general, however, it would seem that where the enactment has relation only to the benefit of particular persons, the word “ void ” would be understood as voidable ” only, at the election of the persons for whose protection the enactment was made, and who are capable of protecting themselves; but that when it relates to persons not capable of protecting themselves, or when it has some object of public policy in view which requires the strict construction, the word receives its natural full force and effect.” Maxwell, Interp. Stat. 2d Ed. 256.

So, in Bowyer v. Bampton, 2 Strange, 1155, it was held that the innocent indorsee of a gaming note can maintain no action against the drawer, the statute, 9 Anne, c. 14, being, “ That all notes, where the whole or any part»of the consideration is money knowingly lent for gaming, shall be void to all intents and purposes whatsoever.” The court said, it is making it of some use to the lender, if he can pay his own debts with it; and it will be a means to evade the act, it being so very difficult to prove notice on an indorsee. And though it will be some inconvenience to an innocent man, yet that will not be a balance to those on the other side.” And so in Lowe v. Walker, Doug. 736, which arose under the statute, 12 Anne, c. 2, § 16, making usurious contracts void, the action being by an indorsee of a bill against the acceptor, the indorsee having no knowledge of the consideration. Lord Mansfield, expressing a great leaning in favor of the plaintiff, said, “ But the words of the act are too strong. Besides, we can not get over the case of the statute against gaming, which stands on the same ground. This is one of those instances in which private must give way to public convenience,” and a recovery was .denied.

In Weed v Bond, 21 Ga. 195, under a statute making void notes given an attorney where he fails to attend to the suit or procure some one to do so, a note so given was held void in the hands of an innocent indorsee, the attorney having failed to attend to the suit of the maker.

In Groves v. Clark, 21 La. Ann. 567, it was held that the third holder of a promissory note, given for the price of a slave, can not recover thereon, although he acquired the note in good faith, for a valuable consideration, before maturity, on the ground that “contracts for the sale of persons” are declared by the constitution of the state, “ null and void.” This seems to have been the general construction placed upon statutes making void securities based upon a gaming consideration. Pickaway County Bank v. Prather, 12 Ohio St. 497, 509; Hatch v. Burroughs, 1 Woods’s, 439, 448; Taylor v. Beck, 3 Rand. 316, 324; Story on Bills, § 189 ; 3 Kent Comm. 80 (13th ed.); Danl. Neg. Inst. § 807.

The individual hardships that may arise in the enforcement of the policy of statutes of this kind, are regarded as less than the public inconvenience to be avoided by the suppression of the evils connected with the vice of gambling. Lord Mansfield observes in the case of Lowe v. Walker, that “ It is less mischievous that the law should be as it is with respect to bills and. notes, than other securities; because they are generally payable in a short time, so that the indorsee has an early opportunity of recurring to the indorser, if he can not recover upon the bilk” Douglas, 744. And it seems to be well settled that one who can make out his title through a person other than the one who executed the instrument on the vicious consideration, may, if an innocent holder, recover from his indorser. Maxwell, Interp. Stat. 250; Bowyer v. Bampton, supra. So that in this case the plaintiff might, on giving due notice, have recovered from its immediate or any prior indorser of the check.

Judgment affirmed.


text:
    Huff v. Austin et al.

      Explosion of steam boilei — Burden of proof.

    The plaintiff as an employe of F. & Co., was at work on the premises of the defendants, in helping to set up a saw-mill which the defendants had purchased of F. & Co. While so at work, a steam boiler, owned and used by the defendants on the premises to run the saw-mill, exploded and injured the plaintiff. Held,: That in an action for damages, the mere fact of the explosion did not raise a prima facie presumption of negligence on the part of the defendants.
    (Decided April 23, 1889.)
    Error to the Circuit Court of Logan County.
    The facts are stated in the opinion.

      Kennedy & Steen, Butterworth & Crosley, for plaintiff in error..
    . E. J. Hoioenstein, West, Brown & West, for defendants in error.
   Dickman, J.

On the 20th day of January, A. D. 1882,. Chauncy F. H. Huffj the plaintiff, was engaged as an employe of Fay & Co., in locating and getting in working order on the-premises of the defendants, Josiah Austin and James Morrison, a saw-mill which Austin had recently purchased of Fay & Co., the latter to furnish a man to help in setting up and getting-the same in working condition. While engaged as such employe of Fay & Co., the plaintiff was injured in his person by an explosion of the steam-boiler owned and used by the defendants to run the saw-mill. The plaintiff brought his action in the court of common pleas, alleging that the explosion was caused by the defectiveness of the boiler and engine, and the carelessness of the defendants in managing and conducting the same, and claimed damages for the injuries he had suffered. A judgment was rendered in favor of the plaintiff, which judgment was reversed by the circuit court, and the cause remanded for error of the court of common pleas in instructing the jury as follows:

If the plaintiff was without fault on his part, and was injured by the explosion of a boiler operated by the defendants, or their servant or agent, the mere fact of such explosion raises a presumption of negligence on the part of the defendants. This presumption is only prima fade however, and not conclusive; that is, the plaintiff will be entitled to recover on such presumption, unless the defendants, by a preponderance of evidence, show that they exercised ordinary care and prudence, that is, such care and prudence as is ordinarily exercised by men of ordinary prudence under like circumstances.”

The defendants had a right to place the steam-boiler on their premises. Used as it was to run the saw-mill, it was in no sense a nuisance. As an agent in the varied departments of industry, the steam engine has become a necessity in modern life. But though placed on one’s own premises, the owner of a steam engine and boiler will be held responsible for his negligence, if he so operates the same as to injure one who comes lawfully upon the premises by invitation or permission. Though doing a lawful act upon his own premises, he will be liable for injurious consequences that may result from it to another, if it was so done as to constitute actionable negligence. In such case, there is a proper application of the rule that one should enjoy his own property in such manner as not to injure that of another person.

But the existence of negligence is an affirmative fact, and the presumption is, until the contrary appears, that every man will perform his duty. There is a general disposition among men to preserve their property, and avoid difficulty and danger, and escape the liability to which the want of care and diligence would naturally subject them. Ordinarily, these motives will secure on the part of the proprietor of machinery impelled by steam, and the engineer in charge of such machinery, that degree of skill and attention which the safety of the public demands. In view of such presumption it is the general doctrine, as sustained by a great weight of authority, that when negligence is the ground of an action, it devolves upon the plaintiff to trace the fault for his injury to the defendant; that he must give some affirmative evidence from which there may be a logical inference of negligence, and the mere' happening of an accident will not be sufficient evidence of negligence to be left to the jury. See Whart. on Neg. 2d Ed. § 421, and cases there cited.

It is contended however, that the defendants are responsible in the'first instance for the immediate consequences of the bursting of the steam boiler in use on their premises, irrespective of any further question as to pegligence or want of skill on their part, and that the accident, in the absence of explanation, is, of itself, evidence of negligence. It is urged that, where the instrument or machinery is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who- have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. But instances are not unfrequent of steam-boiler explosions where there has been no want of ordinary care and skill in their management, and even where there has been the greatest care; and explosions of steam-boilers have happened, of so mysterious a character, that they could not, with confidence, be assigned to any known cause. Considering the extent to which the agency of steam is now so necessarily and usefully employed, we are not prepared to hold that, the owner of a steam-boiler ■used on his premises, shall be deemed virtually an insurer against all damage and injury to person or property resulting from an explosion, unless, in the event of an accident, he assume the burden of proving that there has been no fault or negligence on the part of himself or his agents.

In the early case of Spencer v. Campbell, 9 W. & S. 32, a man drove a horse to defendant’s steam grist-mill to obtain a grist, and was thus lawfully upon defendant’s premises, and was as much entitled to protection there as if he had been upon his own premises. While there the steam-boiler exploded and killed his horse, and the action was brought for the value of the horse. It was held, that to entitle the plaintiff to recover, he was bound to show the want of ordinary care, skill and diligence.

In Losee v. Buchanan et al., 51 N. Y. 476, there was an extended review of authorities. The action was brought to recover damages occasioned by the bursting of a steam-boiler, while the same was owned and being used by the Saratoga Paper Company, one of the defendants, at their mill. The boiler, by means of its explosion, was projected and thrown upon the plaintiff’s premises, and through several of his buildings, thereby injuring and damaging the same,' and destroying personal property therein. The case sustains the doctrine, that the owner of a steam-boiler, who operates and uses the same, in carrying on his business upon his own premises, in such a manner that it is not a nuisance, is not liable for damages done to the property of his neighbor by an explosion of such boiler, without affirmative proof of negligence on the owner’s part.

Earl, C., in commenting upon Spencer v. Campbell, supra, says: “ I am unable to see how that case differs in principle from the one at bar. To sustain the broad claim of the plaintiff here, it should have been held in that case that the owner of the steam-boiler was absolutely liable, irrespective of any care, skill or diligence on his part, for any damage which the boiler by its explosion occasioned to any property lawfully in the vicinity. Within the rules laid down by these authorities, the defendants in this case could not, without proof of negligence, be made liable for injuries caused to the persons of those who were near at the time of the explosion; and it would be quite illogical to hold them liable for injuries to property, while they were not liable for injuries to persons by the same accident.” See also Marshall v. Wellwood, 38 N. J. L. 339.

Walker v. Chicago, Rock Island & Pacific R’y Co., 71 Iowa, 658, is a comparatively recent case, illustrative of the principle that, the accident itself did not furnish a prima facie presumption of negligence against the defendant. A car of dynamite standing in the yard of the defendant railroad company awaiting the orders of its owner, took fire and exploded. The plaintiff sued for damages for the consequent injury to certain buildings, averring that the dynamite was not properly protected; that the fire had caught from a passing engine; and that the car was negligently permitted to stand in an improper place. At the time of the fire the car stood on the outer track at the south side of the yard, and the wind was blowing from the south. There was no evidence that the fire had caught from passing engines, or that they were defective in their machinery for protection against fire escaping therefrom. There was no evidence that the dynamite was not properly protected, nor that the damage would have been less if the car had been standing at any other place in the yard. It was held, that the burden of proof was on the plaintiff to show that the car stood in an improper place, and that there was no evidence of negligence to go to the jury. The court say: “The relation between the parties to the action is not such that the law presumes negligence in the defendant by the mere fact that the plaintiff’s property was injured. The burden was on the plaintiff to show that the place where the car was stored was an improper place. All the light the jury had on this subject was that the car exploded, and the plaintiff’s property was injured.”

Whether the defendants can be held liable for the injury caused by the explosion of the boiler owned and used by them on their own premises, without affirmative proof of negligence beyond the mere fact of the explosion, is not to be determined by the rule of negligence governing common carriers of passengers and goods. The carrier of goods is an insurer, unless his extraordinary responsibility is limited by special contract. And the carrier of passengers, while not an insurer of their safety, is bound to the observance of the utmost care and diligence for their safety, and is responsible for any, even the slightest neglect. “When carriers undertake to carry persons by the agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. Any negligence, in such cases, may well deserve the epithet of “gross.” Grier, J., in Phil. & Read. Railroad Co. v. Derby, 14 How. (U. S.) 486. By reason of the reliance for personal safety, of passengers upon the carrier, and of the high degree of care and diligence which the law requires towards those with whom there is a relation of trust and confidence, courts have held that, the fact of injury having been suffered by any one while upon a railroad company’s train as a passenger should be regarded as prima facie evidence of the liability. Railroad Company v. Mowery, 36 Ohio St. 418. But as to the presumptive liability even of common carriers for injuries caused by boiler explosions, congress, to remove doubt and uncertainty as to such liability, deemed it necessary to provide by sec. 13 of the act of July 7th, 1838, 5 U. S. Stat. at Large, 306, “ that in all suits and actions against proprietors of steamboats, for injuries arising to person or property from the bursting of the boiler of any steamboat, the fact of such bursting shall' be taken as full prima facie evidence, sufficient to charge the defendant or those in his employment, with negligence, until he shall show that no negligence has been committed by him or those in his employment.” The provision in the act of congress was subsequently repealed, but whether in full force or not, there was no such relation between the plaintiff and defendants herein, as exists between common carriers and passengers, and reported cases determining the liability of common carriers for injuries to passengers under their care, furnish no appropriate rule of decision in the case at bar.

Judgment, affirmed.


author: Williams, J.

text:
    Posegate v. South et al.

      Will — Devise of personalty 1o wife, with unconsumed remainder to heirs — •Estate of widow therein — Duty of executor under the will.

    A testator bequeathed all his personal estate, after the payment of his debts and funeral expenses, to his wife, and at her death, “said personal estate, or so much as shall be unconsumed, to be equally divided between ” his heirs, naming them. The wife survived the testator, and accepted the provision made for her in the will. The executor paid the debts and funeral expenses, and delivered the balance of the personal estate to the widow, and settled his accounts accordingly. The will did not require or direct the executor to collect or distribute the personal estate that might be left unconsumed at the death of the widow, or enjoin upon him any duty with respect thereto. Held:

      1. After the debts and funeral expenses were paid, the widow became entitled to the possession, use and enjoyment of the personal estate, with the right to consume the whole or any part of it; and it was the duty of the executor to deliver possession thereof to her.
    2. When the executor performed that duty, he administered the estate and executed his trust, and can not be held responsible for any use or disposition made by the widow, of such personal estate after it so lawfully came to her possession ; nor, can he thereafter be required to account therefor in the probate court.
    (Decided April 23, 1889.)
    Error to the Circuit Court of Clinton County.
    On the 25th day of March, 1885, Benjamin F. South and Charles P. South filed their motion in the Probate Court of Clinton County, for a citation against Isaac N. Posegate, executor of the last will and testament of Charles Posegate, deceased, to compel him to render an account. On the same day, the executor appeared, and answered that on the 6th day of August 1870, he made a final settlement of his trust, in said court, ou which settlement there was found to be then remaining in his hands, a balance of eight thousand one hundred and forty-six dollars, after the debts and expenses ofadministration were paid, which balance be then, in accordance with the last will and testament, turned over to Ann Posegate (the widow of the testator), who died in 1877, but who, before her death, consumed and disposed of the same, except enough to pay the expenses of her last sickness and funeral.
    This answer appears to have been treated by the probate court as an account, and Benjamin F. and Charles P. South filed exceptions to it; the ground of the exceptions being, as stated in the record, “that at the time of the death of Ann Posegate, to-wit: April 29th, 1877, said executor received and had in his hands, as such executor, the sum of eight thousand dollars, and that he still retains the same/’ and it was asked that he might be charged therewith, together with interest thereon. Upon the hearing, the probate court proceeded to state an account for the executor, and found there was in his hands the sum of four hundred and eighty-two dollars and eighty-five cents, which the executor was ordered to pay to Benjamin F. and Charles P. South, in equal proportions., From this order of the probate court, the two Souths took an. appeal to the court of common pleas, which, on the trial there, found that the estate of Charles Posegate had been fully settled, and distribution thereof made in conformity to the last will and testament, and rendered judgment against the appellants for costs.
    A bill of exceptions was taken, from which it appears that “the following state of facts was agreed upon by the parties, and given to the court as testimony :
    “That Charles Posegate, in the month of March, 1860, about the 19th day thereof, having four children, to-wit: I. N. Posegate, Mary Ann Woodmansee, Martha MeKibben and Sallie South, made a will as to his personal estate, devising same to his wife, Ann Posegate, during her life, and at her death to be equally divided among the four children above named, and appointing I. N. Posegate executor of said will. Sallie South died April 4th, 1861, leaving Charles. P. South and Benjamin F. South, her only children and heirs at law. Charles Posegate died July 17th, 1869, leaving a widow, Ann Posegate, and the above named I. N. Posegate, Mary Ann Woodmansee, Martha MeKibben, and the above named children of Sallie South, his only heirs at law.
    “Ann Posegate died April 29th, 1877. At the death of Charles Posegate, I. N. Posegate qualified as executor, and proceeded to settle his estate. After making full settlement, and paying all the liabilities of said estate of every kind, there remained in his hands the sum of $8,146.00, in money and notes, which he handed over to his mother, and she retained $746.00, the money 6n hand, and divided the rest between I. N. Posegate, Mary Ann Woodmansee and Martha MeKibben, giving to I. N. Posegate $3,800, his one-fourth and Sallie’s one-fourth, and Mary Ann Woodmansee and Martha MeKibben $1,800 each, same being one-fourth to each, for which they gave her their notes, and paid her interest on the same as long as she lived.”
    It also appears from the bill of exceptions, that in the life time of the testator, Isaac N. Posegate, for a consideration of six hundred dollars, purchased from Mrs. South her claim in the personal estate of her father, and took from her and her husband, a receipt acknowledging such purchase, and full payment therefor.
    The will of Charles Posegate, which was duly probated, and is made part of the bill of exceptions, omitting its merely formal parts, is as follows:
    “ First — It is my will that all my just debts and expenses of my last sickness and funeral expenses be paid.
    “Second — I give and devise to my beloved wife, Ann Pose-gate, in lieu of her dower, all my personal and chattel estate of every description that may be in my possession at the time of my death, after paying my debts and funeral expenses.
    “ Third — At the death of my said wife, the said personal estate, or so much as shall be unconsumed, to be equally divided between my lawful heirs, to-wit: Isaac N. Posegate, Mary Ann Woodmansee, Martha McKibben and Sarah Jane South.
    “ Fourth — I do hereby nominate and appoint Isaac N. Posegate executor of this, my last will and testament, hereby authorizing and empowering him to compromise, adjust, release, and discharge in such manner as he may deem proper, the debts and claims due me.”
    The circuit court reversed the judgment of the court of common pleas, on a petition in error prosecuted by Benjamin F. and Charles P. South, and the executor, Isaac N. Posegate, prosecutes error to this court to obtain the reversal of the'circuit court.

      Telfair & Telfair, for plaintiff in error.

      J. M. Kirk, for defendants in error.
   Williams, J.

The questions chiefly argued in the case, relate to the validity of the transfer by Mrs. South, of her expectancy in the personal estate of her father, to her brother Isaac N. Posegate. The defendants in error contend, that the attempted transfer is inoperative against them, first: because Mrs. South was, at the time, under the disability of coverture; .■and secondly, her father being then living, her interest in his estate was incapable of transfer. It is also claimed that Mrs. South having died before'her father, her children, by force of the statute, (sec. 5971 R. S.) took directly under the will, and not from her.

Unless, however, at the death of the widow, it became the •duty of the executor to collect and distribute the unconsumed personal estate given her by the will, an account thereof •could not be enforced against him in the probate court; •and whether such duty devolved upon, the executor in the execution of his trust, is naturally the first question demanding consideration.

No statutory election by the widow to take under the will of her deceased husband, is shown by the record. It discloses however, that she actually accepted the provision made for her in the will, by receiving, using, and controlling the property bequeathed to her, as fully as she could, if she had appeared in the probate court for that purpose, and declared her election, which is the equivalent of an election made in •conformity to the statute. Baxter v. Bowyer, 19 Ohio St. 490. The bequest contained in the second item of the will, is absolute, and, unaffected by any other provision of the will, would vest in the widow, the unqualified ownership of the property •bequeathed to her. If it be conceded, that the third item, which, at her death, gives the personal estate, or so much thereof as shall be unconsumed, to the testator’s children, so ■qualifies the previous bequest, as to reduce the estate given by it to the widow, to one for life, it must also be admitted, that it is a life estate with the right to the possession, use, enjoyment and consumption of the property by her, without restriction, either upon the mode of its use and enjoyment, or the extent of its consumption ; for, it is only so much as shall remain unconsumed at the death of the widow, that is given over to the children, and no limitation is found in the will, upon the nature of the use to which she may subject the property, and her power to consume it. is uncontrolled. Such right of use, enjoyment and consumption, necessarily implies the right to the possession of the property, since, vdthout its possession, it could neither be used, enjoyed or consumed. The duty of the executor, under the will, therefore was, after the payment of the debts and funeral expenses of the testator, to deliver possession of the personal estate to the widow.

It may be, that a court of equity, would have compelled the widow to furnish the legatees of the remainder, an inventory of the property received by her from the executor ; and, that a proceeding might have been maintained by them against her to require security against its improper disposition, likely to defeat their estate in it. It has sometimes been held, that equity will assist the donee in remainder, to whom a gift of personal property is made after the decease of another who is to have it only for life. And it may also be, that no disposition which the widow could make of the property, otherwise than such as resulted from its use and comsumption, would be effectual as against the children to whom the unconsumed remainder is bequeathed, and, that a remedy is open to them, to‘ charge the person receiving it under such unauthorized disposition, like that pursued in the case of Huston v. Craighead, 23 Ohio St. 198. But we are of opinion, no duty was imposed upon the executor, to exact an inventory from the widow when he delivered the personal estate to her according to the requirement of the will, or to institute proceedings to protect the donees in remainder; nor, is he responsible for any disposition made of the property by the widow after it lawfully came to her possession, or thereafter accountable for it, in his representative capacity. It can not be claimed, that any express duty is enjoined by the will upon the executor, with respect to the estate in remainder. He is not required or directed to take charge of the unconsumed personalty, and divide it among the children. It is given by the will directly to them, to be equally divided among them. Upon this point the case is not distinguishable from Flickinger v. Saum, 40 Ohio St. 591. There, the testator devised and bequeathed his real and personal estate, after the payment of his debts, to his wife for life, remainder to be qually divided between the heirs of his children. The executor paid the debts, and delivered the balance of the personal estate to the widow. It was held the executor had no remaining duty to perform, and that it was not his duty to divide the estate in remainder. It is said in the opinion by Martin, J., that after the executor paid the debts; (there being no legacies to pay), he had no right to retain the assets. The devise to the widow was of all the personal property, and was in its nature specific. The assent by the executor was a relinquishment of all claim to the property, and perfected the title of the widow and remainder men.” And see Ratcliff v. Warner, 32 Ohio St. 334.

In the case now under consideration, the bequest to the wife is of all the testator’s personal estate. The debts and funeral expenses were paid by the executor. There were no legacies to be paid. The executor had no right to withhold from the widow, the personal estate remaining in his hands, and nothing remained for him to do but deliver its possession to her, and settle his accounts. This, according to the agreed statement of facts contained in the bill of exceptions, the executor did, and we think the court of common pleas correctly held, that the estate was finally settled and distributed in conformity to the will. As this conclusion is decisive of the case, we leave undecided the questions argued, concerning the validity, and effect of the transfer by Mrs. South of her expectancy, and the rights of the defendants in error in the property. Those questions could not properly be determined in the proceeding prosecuted by them in the probate court, nor in any other which that court has jurisdiction to entertain.

Judgment of the circuit court reversed, and that of the common pleas affirmed.