author: Price, J.

text:
    The State of Ohio v. Langenstroer.

      Bill of exceptions on trial before justice — Section 6565, Rev. Stat. —Party may except, when — Has ten days to prepare bill of exceptions — Rule as to attachment, to bill of exceptions, of transcript and original papers — Court procedure.

    1. Under the provisions of Section 6565, Revised Statutes, a party-on trial before a justice of the peace, charged with a misdemeanor over which the justice has final jurisdiction, may except to his decisions upon matters of law arising in the case; and if such party except at the time of the decision, he may request and have time, not exceeding ten days from the date of the decision, within which to prepare and hare signed his bill of exceptions. Said section embraces criminal as well as civil cases.

      S,, It is not essential to the jurisdiction of the court of common pleas to consider such bill of exceptions, that the transcript and original papers in the case be attached to the petition in error when the same is filed; but the filing of such transcript, bill of exceptions and other necessary original papers, if within the statutory period, gives such reviewing court jurisdiction, and it may permit the same to be attached before the cause is heard. State v. Ransick, 62 Ohio St., 283. approved and followed.
    (Decided October 14, 1902.)

      Exceptions to the decisions of the Court of Common Pleas of Hamilton county, Ohio.
    The case in court of common pleas where the exceptions were taken, was a proceeding in error to reverse the judgment of a justice of the peace of Hamilton county. The judgment of the justice was rendered against Langenstroer on the verdict of a jury finding him guilty of violating a section of the so-called “pure food” laws, in that he had sold oleomargarine containing coloring matter. A motion for. new trial was overruled, by the justice, and on application of the defendant, time not exceeding ten days was given for the preparation and signing of a bill of exceptions. A bill of exceptions was prepared and duly signed within the time allowed, and error was prosecuted in the court of common pleas, to reverse the judgment of the justice of the peace; which bill of exceptions, the original papers, and a transcript of the docket entries, were filed with a petition in error in that court; but the transcript and original papers were not attached to the petition in error when filed, but by permission of the court they were so attached before the case was heard. The court of common pleas reversed the judgment of the justice, because of error committed in impaneling the jury; and also for error in the admission of testimony on the trial.
    1. It is contended in behalf of the exceptions, that the justice had no authority to give time after the trial, for the preparation and signing of a bill of exceptions, and therefore the court of common pleas had no right to consider it, or any ruling contained in it, and that as the grounds stated for reversal could appear only by a proper bill of exceptions, the reviewing court was without jurisdiction to pass upon them.

      2. It is further contended that the plaintiff in error in the lower court, Langenstroer, did not comply with the provisions of Section 7358, Revised Statutes, by attaching to the petition in error, the transcript and original papers belonging to the case.
    3. The state makes the additional claim that the only grounds for a new trial before a justice of the peace are those named in Section 6560, Revised Statutes, while, on the contrary, it is contended for defendant in error in this court, that in criminal cases before a justice of the peace where he has power to render a final judgment, the defendant may ask a new trial on any or all the grounds contained in Section 7350, Revised Statutes.

      Mr. O. J. Benner, for plaintiff.

      Mr. Edward M. Ballard, for defendant.
   Price, J.

1. In the trial of Langenstroer before the justice of the peace and a jury, on a charge of violating one of the sections of the “pure food” statutes, certain excejitions were taken by him to rulings of the court in impaneling the jury, and exceptions also taken to rulings made on the introduction of the testimony. After a verdict of guilty, the defendant obtained time not exceeding ten days within which to prepare and have signed his bill of exceptions. The bill was duly signed within the time allowed and, with a petition in error and the original papers, it was filed in the court of common pleas. It was urged in that court, as it is here, that the bill of exceptions had no vitality, because it was signed after the close of the trial, and the justice had no authority to give time for its preparation and signing. This is the first subject for our consideration, and yet it cannot now be regarded as an entirely open question in this court.

At one time there was no provision for a bill of exceptions at a trial before a justice of the peace, and under the practice of those days, an exception to a decision of law in thé case must be stated in the docket entries, if it was to be reviewed on error prosecuted in the court of common pleas. This method was changed in later years by providing that a bill of exceptions might be taken at the trial, but in order to give it validity, it must, after being signed, have been copied on the docket of the justice and a transcript thereof filed in the reviewing court in order to present the questions for review.

To dispense with the recording of such bill of exceptions upon the docket, Section 6565, Revised Statutes, provided for the preparation, signing and filing of the bill containing the exceptions, with the other papers in the case, and that if the excepting party desired time in which to prepare the bill and have it signed, it was legal for the justice to give such time within the stated limit. This rule has been continued with slight changes since the amendment of March 29,1883. The last amendment was made to the above section April 12,1898, and it provides: “In all eases before a justice of the peace, whether tried by a jury or by the justice, either party shall have the right to except to the decisions of the justice upon any matters of law arising in the case. The party objecting to the decision must except at the time the decision is made, and if requested by the party objecting, time shall be given to reduce the exceptions to writing, but not more than ten days, nor less than five beyond the date, or [of] overruling of the motion for a new trial, or from the date on which the decision of the justice is rendered * * * .” Within the time given, if the bill is correct, the justice shall sign the same and make a note of the facts on his docket, and within ten days thereafter he shall transmit to the clerk of the common pleas court, the bill of exceptions, transcript and original papers.

But does section 6565 apply to exceptions taken in the trial of criminal cases before the justice of the peace? Counsel for the exceptions assert that it does not, and therefore the court of common pleas was not authorized to consider and adjudicate any question contained in such bill where it was signed as in this case.

In State v. Ransick, 62 Ohio St., 283, this court has virtually disposed of this contention. That was a pure food case, decided in this court in March, 1900. After conviction in the justice’s court, Ransick took a bill of exceptions, which was signed by the justice and the allowance and signing were noted on his docket, but the bill of exceptions was not entered at length upon the docket. The court of common pleas in that case refused to consider the bill of exceptions because it had not been so entered on the docket of the justice, and the judgment of the justice was affirmed. For this error the circuit court reversed the common pleas, and remanded the case to the common pleas for its further consideration. The state prosecuted exceptions in this court, to the judgment and decision of the circuit court, and this court held in the first declaration of the syllabus that: “A bill of exceptions taken in a trial before a justice of the peace in a criminal case, is not required to be entered upon his docket. It is sufficient if it be allowed and signed by the justice and filed with the papers in the case, and an entry of these facts with the date thereof is made on his docket.”

This decision is based solely upon the ground that section 6565, while it belongs to the practice before a justice in civil cases, applies also to criminal cases, and that it dispenses with entering the bill of exceptions at length on the docket. In the opinion of the court, as announced by Minshall, J., it is said on p. 286: “It (section 6565) embraces all cases before a justice of the peace — not merely civil cases. The object seems to have been economy and convenience in practice, and in reason applies as well to criminal as to civil cases * * * .”

If the section quoted governs in criminal cases for one purpose, it will also govern for another purpose covered in the same and preceding sentence, where it is distinctly provided that “the party objecting- to the decision must except at the time the decision is made, and if requested by the party objecting, time shall be given to reduce the exceptions to writing, but not more than ten days, nor less than five beyond the date, or [of] overruling of the motion for a new trial, or from the date on which the decision of the justice is rendered.” There is no reason uoav apparent Avhy Ave. should hold differently in this case from the reasoning in State v. Ransick, supra, and it follows that the justice Avas authorized to give time for preparing and signing the bill, as provided in Section 6565, Revised Statutes, and this being so the court of common pleas had a right to consider it.

2. The state further argues that there is no authority under the law for a justice of the peace to-entertain a motion for new trial in a criminal case, and that the only provision for a motion for new trial in that court is found in Section 6560, Revised Statutes, where “the verdict was obtained by fraud, partiality or undue means.” It is attempted to make this point pertinent, by making it appear that no such ground was assigned for new trial in this case, hut other grounds recognized hy section 7350 of the criminal practice, and therefore the common pleas erred in considering the questions presented in the bill of exceptions.

This conclusion does not follow from the premises laid. The exceptions exhibited show that they relate to error committed in impaneling the jury; and error in the introduction of the testimony.

It Avas not necessary to file any motion for new trial before the justice in order to have either of these questions reviewed in the court of common pleas. If the bill of exceptions show's that proper objections wereunade and exceptions saved, they may be reviewed without a motion for new trial having been filed in the trial court. See Earp v. Railway Company, 12 Ohio St., 621; Lockwood v. Krum, 34 Ohio St., 1.

The court of common pleas did not reverse the judgment on the weight or insufficiency of the evidence, but for the errors of laAV above pointed out.

Hence, we are not called upon to decide Avhat the motion for new trial should or should not have contained.

3. Another exception noted in the record grows out of the admission of certain testimony at the trial, and which was made one of the grounds of reversal in the loAver court.

This evidence and the question growing out of it are not mentioned in the printed brief, nor was any reference made to it in oral argument, and we treat the matter as abandoned by counsel.

4. The same observation may be made as to the alleged error in impaneling the jury. We are not cited, either in brief or oral argument, to the part of the proceedings in impaneling the jury where the alleged error occurred, and we are not informed by the exceptions, as to what action or ruling of the justice was found to be erroneous, by the court of common pleas.

5. It is said the lower court should not have entertained and considered the case on error, because the plaintiff in error there did not file his petition in error with the transcript and original papers attached thereto, as required by Section 7358, Revised Statutes.

It seems to be conceded that while they were not so attached when filed in the court of common pleas, they were attached by permission of the court before the case was heard.

We think the court acquired jurisdiction of the case when the papers were filed, and it was competent for the court to allow them to be attached, as was done in this case. It was so decided in State v. Ransick, 62 Ohio St., 283.

The exceptions are overruled.

Burket, C. J., Spear, Davis, Shauok and Crew, JJ., concur,


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Vorys, Superintendent of Insurance of Ohio, v. The State ex rel. Connell.

      State superintendent of insurance — Has discretion to refuse license to agent of foreign company — When such agent solicited insurance without license.

      It is witliin tlie discretion of the superintendent of insurance to, refuse a license as agent of a foreign life insurance company to one who, in violation of the statute, has, without first obtaining such license, solicited applications for insurance in such company, and, as a part of such solicitation, has offered a rebate of a portion of the regular premium.
    (Decided October 14, 1902.)
    Error to the Circuit Court of Franklin county.
    In the circuit court, the relator filed a petition for a peremptory writ of mandamus to compel the plaintiff in error, as superintendent of insurance of the state of Ohio, to issue to the relator a license and certificate of authority to act as agent for the Mutual Life Insurance Company of New York, in the transaction of its business of life insurance in the state of Ohio. He alleged that the company was duly incorporated and organized according to the laws of the state of New York, for the purpose of transacting the business of life insurance; that for more than ten years last past,- the company had been transacting said business in the state of Ohio, and was duly authorized to engage in said business in Ohio, and is now so authorized and licensed; that the relator himself is a citizen of the state of Ohio, and that he had at no time had a certificate or license from the superintendent of insurance, to act as agent, or to act in any capacity whatever for said company; that on the twenty-second day of October, 1900, the relator was duly appointed, by said company, as its agent for procuring applications for life insurance, and transacting its business in Ohio, and continued to be such agent, and, further, that on the twenty-second day of October, 1900, the relator made proper application to the superintendent for the granting and issuing to him of a certificate of authority, and license to act as such agent in the state of Ohio, and filed with him a certificate of his appointment by the company, giving his residence, and tendering the proper fees, and further alleging that both the relator and the company had performed all acts to be by them done, as a condition precedent to such application for a license. The omission of the relator to aver that his application was denied is supplied by the answer.
    The superintendent answers admitting his official character as superintendent, the corporate character of the Mutual Life Insurance Company, and its authorization to engage in the business of life insurance in Ohio, and substantially all the allegations of the petition, but he alleged:
    “That on or about the fifteenth day of October, A. D. 1900, he, the said relator, being employed and authorized by the said Mutual Life Insurance Company of New York, to act within the state of Ohio, as agent for said company, and then acting as such agent for said company, without procuring from the superintendent of insurance of Ohio, a certificate of authority so to do, or in any Avay being authorized to procure an application or applications for insurance, or to take risks, or in any manner to transact, or aid in transacting the business of life insurance in such state, at the time aforesaid, did, in the county of Columbiana of said state, solicit insurance upon the life of one J. F. Adams, a resident of said county and state, and did then and there offer to pay or allow, as an inducement to such insurance to the said J. F. Adams, a rebate of premium- payable on such policy of insurance, thereby giving to the said J. F. Adams a special favor, advantage, consideration and inducement not specified in the policy contract of insurance, in this to-wit: That the amount of the annual premium upon such policy of insurance, when computed by the rate charged for such insurance, to insurants of the same class and equal expectation of life, and due at the time of the delivery of such policy by its terms, was eighty ($80.00) dollars, and which amount the said relator, as an inducement aforesaid, offered to rebate in the sum of 50 per cent, thereof, by offering to pay or allow to said J. F. Adams the sum of forty ($40.00) dollars thereof.
    “Defendant says that by section four of the act of April 7, 1893 (90 O. L., pages 345 and 346), being Sections 3631-7, Bates’ Annotated Ohio Statutes, it became and was the duty of the said defendant, upon being satisfied that he, the said relator, had violated the provisions of said act, to refuse to issue to such relator any certificate of authority or license to act as agent for any company authorized to transact the business of life insurance in the state of Ohio. And defendant says that acting pursuant to the direction of the statute aforesaid, and having been and still being satisfied that said relator is guilty of the matters herein charged, refused and still refuses to issue to such relator a license or certificate of authority to act as such agent.
    “That afterwards said relator upon notice given him by the said defendant, appeared in person and by counsel before said defendant and admitted to said defendant tlie truthfulness of the facts herein averred, and he, the said defendant, then notified said relator that by reason thereof he, the said defendant, would not issue to him any license or certificate of authority to transact or aid in transacting any life insurance business within the state of Ohio.”
    The circuit court sustained a general demurrer to this answer, and the superintendent not desiring to plead further, it granted a peremptory writ according to the prayer of the petition.

      Mr. J. M. Sheets, attorney general, and Mr. Smith W. Bennett, for plaintiff in error, cited and commented upon the following authorities:

      Dodge v. Gridley, 10 Ohio, 173; Bank v. Roosa, 13 Ohio, 334; Hirn v. State, 1 Ohio St., 15; Jones v. Carr, 16 Ohio St., 420; State v. Franklin County, 20 Ohio St., 421; Malone v. Toledo, 34 Ohio St., 541; State v. Railway Co., 37 Ohio St., 157; State v. Rouch, 47 Ohio St., 478; People v. Formosa, 131 N. Y., 478; State v. Moore, 42 Ohio St., 103; Insurance Co. v. Ellis, 32 Ohio St., 388; People v. McCann, 67 N. Y., 506; United States v. Winn, 3 Sumn., 209; American Fur Co. v. United States, 27 U. S. (2 Pet.), 358; The Schooner Harriet, 1 Story, 251; The Schooner Industry, 1 Gall., 114; United States v. Athens Armory, 35 Ga., 344; United States v. Wiltberger, 18 U. S. (5 Wheat.), 76; Woodworth v. State, 26 Ohio St., 198; Bach v. State, 38 Ohio St., 664; Dwelling House Ins. Co. v. Webster, 4 Circ. Dec., 704; 7 C. C. R., 536; Sampsell v. Sampsell, 9 Circ. Dec., 510; 17 C. C. R., 455; Hendershot v. State, 44 Ohio St., 209; 1 Bishop on Crim. Law, Secs. 461, 464; 2 Bishop on Crim. Law, Sec. 346; Bishop on Stat. Crimes, Sec. 271; Insurance Co. v. Eshelman, 30 Ohio St., 647;
      Hooper v. California, 155 U. S., 648; Doyle v. Insurance Co., 94 U. S., 535; Fire Assn. v. New York, 119 U. S., 110; Barron v. Burnside, 121 U. S., 186; Petroleum Co. v. Weave, 27 Ohio St., 343; Telegraph Co. v. Mayer, 28 Ohio St., 521; Lewis v. Bank, 12 Ohio, 132; Bank v. Jones, 16 Ohio St., 145; Moses v. State, 65 Miss., 56; State v. Insurance Co., 50 Ohio St., 252; Hard v. Robinson, 11 Ohio St., 232; Walker v. Cincinnati, 21 Ohio St., 15; Ireland v. Turnpike Co., 19 Ohio St., 369.

      Mr. J. Y. Todd, for defendant in error, submitted no brief.
   Shauck, J.

The principles of construction here called in question are not distinguishable from those which were considered in State ex rel. Insurance Company v. Moore, 42 Ohio St., 103. The judgment there rendered follows the third proposition of the syllabus:

“When such officer (the superintendent of insurance) , in determining upon the performance of a public duty, is called upon to use official judgment and discretion, his exercise of them, in the absence of fraud, bad faith; and abuse-of discretion, will not be controlled or directed by mandamus.”

In the present case, the superintendent insists that in refusing to issue to the relator a license and certificate of authority, he was exercising the discretion which was there held to be vested in him, and so exercising it, as was required by his duty to see that there is an observance of the insurance laws of the state. Was it within his discretion to refuse the license in view of the facts alleged in his answer, and admitted’ by the demurrer?

The application for a license w’as made by the relator on the twenty-second day of October, 1900. On the fifteenth day of October, the relator, without the required authority to solicit applications for insurance in the insurance company whose agent he was, had solicited such application, and had, as an inducement to the person whose application he solicited, offered a rebate of fifty per cent, of the premium payable by other persons of the same class. Not only had these acts been done by the relator, but, at the time of his application for a license, they were admitted to have been done, and that admission was the ground for the refusal of the superintendent. The soliciting of the application by the relator, without having a license as the agent of a foreign insurance company was expressly prohibited by Section 3604, Revised Statutes, and the offer of a rebate was expressly prohibited by the provisions of Section 3631-4, Revised Statutes. The provisions of the statute, which had been thus violated by the relator, are comprehended within the terms of section 3631-7, declaratory of the consequences of such violation:

‘Tt shall be the duty of the superintendent of insurance, upon- being satisfied that any such corporation, or agent thereof, has violate'd any of the provisions of this act, to revoke the license of the company, or agent, so offending, and no license shall be granted to such company, or agent, for one year after such revocation.”

By the explicit terms of this section, it would have keen the duty of the superintendent to revoke the license, if one had been issued, and he would, at the time of the application, have been without authority to grant another. His refusal being in accordance with the manifest spirit of the statute, and in furtheranco of its obvious purpose, tv as within his discretion, if not within his imperative duty.

Judgment of the circuit court reversed, and judgment for the plaintiff in error.

Burket, C. J., Spear, Davis, Price and Crew, JJ., concur.


author: Davis, J.

text:
    The State of Ohio v. Townley.

      Court has inherent power to administer oaths — May he administered hy deputy cleric, when.

    1. A court has inherent power to administer oaths on the trial of cases, without an express provision therefor by statute.
    2. An indictment for perjury which charges that the oath was administered in open court by a deputy clerk, should be sustained when the evidence shows that the oath was administered in open court by one who was performing the duties of a deputy clerk.
    (Decided October 14, 1902.)
    Exceptions to the Court of Common Pleas of Marion county.
    Richard Towmley w-as indicted at the September term of the court of common pleas of Marion county, for perjury. The indictment charged that Towmley “on or about the twmnty-second day of December, in the year of our Lord one thousand eight hundred and ninety-nine, with force and arms, in said county of' Marion, and state of Ohio, then and there being, in a certain petition for divorce, and cause then pending' in the court of common pleas, within and for said county of Marión, wEerein the said Richard Towmley was complainant, and one Alice Towmley was defendant, did appear in said court, which was then and there open for the transaction of business, and was then and there solemnly sworn in said open court by M. Waddel, clerk of said court, by W. H. Folk, deputy of said M. Waddel, clerk as aforesaid, who then and there was duly empowered and authorized by law as such clerk, and by said deputy, to administer said oath, and so being sworn then and there in the said petition and cause and in a matter material thereto, did corruptly and willfully depose and declare certain matters then and there to be facts, to-wit,” etc. On the trial of Townley upon this indictment, after the state had presented its evidence and rested its case, and after the defendant had presented his evidence, the defendant moved to arrest the testimony from the jury and direct the jury to return a verdict of not guilty, for the following reasons:
    “First — Because the evidence offered by the state of Ohio is insufficient to sustain the allegations of the first count of the indictment herein.
    “Second — Because the evidence offered by the state of Ohio shows that William H. Folk, deputy clerk of M. Waddel, clerk of the court of common pleas of Marion county, Ohio, had no right or authority under the laws of the state of Ohio to administer the oath set out and referred to in said first count of said in- . dictment herein.
    “Third — Because the evidence fails to show that an -oath is lawfully administered in said proceedings set out in said first count of said indictment herein to said defendant.”
    The court* sustained this motion and directed the jury to retire to their room and return a verdict finding the prisoner not guilty, which the jury accordingly did do; and the defendant was, thereupon, discharged.

      To flie ruling of tlie court directing the jury to return a verdict of not guilty and sustaining the motion of the defendant to arrest the testimony from the .jury and discharging the defendánt, the state, by the prosecuting attorney, excepted. Motion for new trial was filed and overruled, and a bill of exceptions signed, allowed and made part of the record.

      Mr. Fred E. Guthery, prosecuting attorney, for plaintiff in error, cited and commented upon the following authorities:

      State v. McCracken, 51 Ohio St., 123; State v. Commissioners, 58 Ohio St., 384; 2 Bouvier’s Law Dic., 237; Anderson’s Law Dic., 677; Staight v. State, 39 Ohio St., 496; State v. Barbee, 45 Ohio St., 347; State v. Taylor, 15 Ohio St., 137; State v. Brewster, 44 Ohio St., 589; Robbins v. Commissioners, 1 Circ. Dec., 340; 2 C. C. R., 23; Sutherland Stat. Const., Sec. 447; Black on Interpretation of Laws, Sec. 127; Oaks v. Rodgers, 48 Cal., 197; Stephens v. State, 31 Tenn. (1 Swan), 157; Keator v. People, 32 Mich., 484; 2 McClain’s Crim. Law, Secs. 855, 856; State v. Dreifus, 38 La. Ann., 877; Izer v. State, 77 Md., 110; Carleton v. People, 10 Mich., 250; State v. Carroll, 38 Conn., 449; State v. Speaks, 95 N. C., 689; Rex v. Verelst, 3 Camp., 432; State v. Hall, 7 Blackf. (Ind.), 25; Smith v. State, 31 Tex. Crim. Rep., 315; Clark v. Commonwealth, 29 Pa. St., 129; State v. Neil, 7 Ohio (pt. 1), 132; State v. Harris, 17 Ohio St., 608; Upington v. Oviatt, 24 Ohio St., 232; Bainbridge v. State, 30 Ohio St., 264; Duke v. State, 20 Ohio St., 225; Stem v. Cincinnati, 9 Dec., 45; 6 N. P., 15; State v. Caywood, 96 Ia., 367; Masterson v. State, 144 Ind., 240; Server v. State, 2 Blackf. (Ind.), 35; State v. Knight, 84 N. C., 793; Walker v. State, 18 Smith Rep., 393; 2 Wharton’s Crim. Law (9 ed.), Secs. 1287-1315; People v. Nolte, 19 Miscel. (N. Y. Sup.), 674; 18 Am. & Eng. Ency. Law, 304; 2 Bishop’s New Crim. Law, 1020; Rowland v. Thompson, 65 N. C., 110; 2 Wharton’s Crim. Law, Sec. 1315; Warwick v. State, 25 Ohio St., 21; Underhill on Crim. Ev., 45; State v. Thomas, 58 Kan., 805; Spalding v. People,, 172 Ill., 40; State v. Forrester, 63 Mo. App., 530; State v. Hobbs, 37 W. Va., 812; State v. McGinnis,, 2 West., 140; State v. McKay, 2 West., 543; State v. Bucher, 2 West., 544; State v. Roach, 64 Mo. App., 413; People v. Loui Tung, 90 Cal., 377; State v. Farley, 53 N. W. Rep., 1089; Harris Crim. Law, 313; Price v. State, 19 Ohio, 423; Mitchell v State, 42 Ohio St., 383; Clark’s Crim. Law, 376.

      Mr. G. E. Mouser, for defendant in error, cited and commented upon the following authorities:

      People v. Murray, 70 N. Y., 521; Johnston v. Wilson, 2 N. H., 202; Smith v. Cansler, 83 Ky., 367;, Greenwood v. State, 17 Ark., 332; Banner v. McMurray, 1 Dev. L. (N. C.), 218 ; Boardman v. Halliday, 10 Paige (N. Y.), 223; Morrel v. People, 32 Ill., 499; Commonwealth v. Hughes, 87 Mass. (5 Allen), 499; Renew v. State, 79 Ga., 162; Territory v. Anderson, 21 Pac. Rep., 417; State v. Wilson, 87 Tenn., 693;. Hamm v. Wickline, 26 Ohio St., 81; McGragor v. State, 1 Ind., 232; State v. Dayton, 23 N. J. L., 49; State v. Cannon, 79 Mo., 343; Biggerstaff v. Commonwealth, 11 Bush (Ky.), 69; State v. Phippen, 62 Ia., 54; Lambert v. People, 76 N. Y., 220; State v. Knight,, 84 N. C., 789; People v. Albertson, 8 How. Pr. (N. Y.), 363; Muir v. State, 8 Blackf. (Ind.), 154; Rex v. Verelst, 3 Camp., 432; State v. Gardner, 54 Ohio St., 24; Throop on Public Officers, Sec. 623; Mechem on Public Officers, Sec. 321; McCraw v. Williams, 33 Gratt. (Va.), 510; Plymouth v. Painter, 17 Conn., 585; State v. Carroll, 38 Conn., 449; Hooper v. Goodwin, 48 Me., 79; Hamlin v. Kassafer, 15 Ore., 456; Bailey v. Fisher, 38 Ia., 229; Tucker v. Aiken, 7 N. H., 113; Clark v. Commonwealth, 29 Pa. St., 129; Harte v. Bode, 7 Dec. 74; 4 N. P., 421; State v. Commissioners, 58 Ohio St., 384; Silver v. State, 17 Ohio, 365; State v. McGinnis, 74 Mo., 245; Dyer v. State, 74 Ind., 594; Harlan v. State, 134 Ind., 339; State v. Hobbs, 37 W. Va., 812; Randolph v. State, 100 Ala., 139; Berry v. State, 92 Ga., 47; 17 S. E. Rep., 1006; Frazier v. State, 56 Ark., 242; Jackson v. People, 40 Ill., 405; Wiles v. State, 33 Ind., 206; Deck v. State, 47 Ind., 245; Luck v. State, 96 Ind., 16; Ryan v. State, 22 Tex. App., 699; Williams v. State, 21 Tex. App., 256; Shelton v. State, 27 Tex. App., 443; State v. Mills, 33 W. Va., 455; Leslie v. State, 35 Fla., 184; 17 So. Rep., 559; Pickerel v. Commonwealth, 30 S. W. Rep., 617 (Ky.); People v. Etting, 99 Cal., 577; 34 Pac. Rep., 237; People v. Curley, 99 Mich., 238; 58 N. W. Rep., 68; State v. Farley, 87 Ia., 22; 53 N. W. Rep., 1089; Sullivan v. People, 114 Ill., 24; Sec. 7362, Rev. Stat.; State v. Knight, 54 Ohio St., 330; Gravatt v. State, 25 Ohio St., 162; Norris v. State, 25 Ohio St., 217; State v. Bailey, 50 Ohio St., 636; Underhill on Crim. Ev., 46; 1 Bishop’s New Crim. Pro., Sec. 384; Rowland v. Thompson, 65 N. C., 110; Keator v. People, 32 Mich., 484; State v. Caywood, 96 Ia., 367; Server v. State, 2 Blackf. (Ind.), 35; State v. Hall, 7 Blackf. (Ind.), 25; Masterson v. State, 144 Ind., 240; State v. Speaks, 95 N. C., 689; Smith v. State, 31 Tex. Crim. Rep., 315; State v. Dreifus, 38 Ia. Ann. 877; Izer v. State, 77 Md., 110.
   Davis, J.

It is clearly established by the testimony shown in the record in this case that the oath usually administered to- witnesses was administered to the person charged with perjury in this indictment; that tire oath was administered in open court upon the trial of a case in the county of Marion; that the testimony given by the accused under the sanction of that oath was false; that the oath was administered by one W. H. Folk, acting as deputy clerk of the court; and (that said Folk was not deputy clerk de jure. Whether or not Folk was deputy clerk de facto is perhaps a debatable question; but it is one which we do not find it necessary to decide. He had been duly appointed to the office or public trust of deputy clerk, if it is an office or public trust, and continued therein without having been discharged by the officer appointing him, at any time during the first or second term of the latter. Sections 8 and 9, Revised Statutes. Whether this constituted him an officer de facto we leave undetermined. The facts remain, however, that he had been legally appointed and qualified as deputy during the first term of his principal, ánd had performed the duties of a deputy clerk during such term and continued to do so, under a verbal appointment and without objection from anybody during the second term of his principal. While so acting, he, in open court, presumably with the sanction of the court, if not by its express direction, administered to the accused the oath which is the foundation of this prosecution. It certainly was so much within the knowledge and approval of the court that the. testimony given by the accused under that oath was material in obtaining the divorce which he was seeking in the case then on trial. It is fundamental that every court has inherent power to do all things which are reasonably necessary for the administration of justice within the scope of its jurisdiction. State v. Caywood, 96 Ia., 367. Therefore, it is not necessary that there should be a statute empowering the courts to administer oaths in the trial of cases. The power is implied in the jurisdiction to try cases and to receive the testimony of witnesses under oath. It was upon this principle, apparently, that the Supreme Court of Tennessee held that “the judge himself may administer the oath, or he may direct any one in his presence, in open court, to administer it, and the oath will be valid.” Stephens v. State, 1 Swan (Tenn.), 157. In that case the court continues: “The oath does not derive its sanction and validity from the circumstance merely that it was administered by the clerk, but, from the circumstance that it was duly administered in open court, with the approval and under the control of the judge presiding. It was not, therefore, necessary that the person avIio administered the oath, 'under these circumstances, should have been a legally appointed deputy.” A similar ruling Avas made in Oaks v. Rodgers, 48 Cal., 197. In delivering the opinion of this court in Staight v. State, 39 Ohio St., 496, Okey, J., noted these cases in Tennessee and California, and pointed out the distinction between them and the case then under consideration. The same distinction applies here, The oath was administered by Folk in a judicial proceeding by the court and in the presence of the judge presiding therein. It was necessarily under the supervision of the judge. It was the performance of a mere ministerial act for the court. Being in other respects strictly legal, and being administered in open court Avith the assent and under the supervision of the court, it could Avork no prejudice to the accused whether the oath wag administered by the judge, or by an officer of the court, or by any one not an officer who performed that duty for the court. In addition to the authorities already cited the views here-expressed are supported by the following cases: Server v. State, 2 Black. (Ind.), 35; State v. Knight, 84 N. C., 789; State v. Dreifus, 38 La. Ann., 877; State ex rel. v. Polke, 7 Black. (Ind.), 27, 29; Keator v. People, 32 Mich., 484; Masterson v. State, 144 Ind.,, 240.

Exceptions sustained.

Burket, C. J., Spear, Shaucic, Price and Crew, JJ., concur.


author: Burket, C. J.

text:
    James v. West, Admr., et al.

      Administrator’s account referred to commissioner by probate court — Section 6183, Rev. Stat. — Appeal to common pleas court —Latter may hear cause or refer to new commissioner — Sections 5222 and 5223, Rev. Stjit. — Court jurisdiction — Special master commissioner’s report may not be set aside for incompleteness, when — Administrator charged with his own debts to estate as money in hand — Debts owing the estate by his firm not his personal debts — Insurance money belongs to mortgagee • — Money tied up in hands of administrator by litigation does not bear interest — Debts of estate to be paid before distribution to heirs — What special master’s report must find — On petition in error judgment on administrator’s account may be modified — Single item may be remanded to court below, when — Sureties on bond liable for debts owing estate by administrator, when.

    1. An account of an administrator with exceptions thereto having been referred to a special commissioner by the probate court under Section 6186, Revise.d Statutes, and such commissioner having made his report, the same being confirmed, and an appeal taken to the court of common pleas, that court may hear and determine the cause upon such report and other testimony if necessary, or may, if it deems it expedient and proper, refer the account and exceptions to a new commissioner appointed by the court for that purpose. The court may pursue either course as to it may seem best, and error will not lie for so doing.
    :2. Upon a reference being made under said section, the course of proceeding is, not according to the usages of courts of chancery, but according to the provisions of the code of civil procedure, and especially sections 5222 and 5223.
    .3. The statute which requires courts, referees, and special masters to determine and adjudicate all causes within ninety days after final submission, is directory merely, and does not have the effect to oust the jurisdiction.

      4. Former accounts of an administrator having been passed upon and settled, and exceptions being filed to his final account and a reference made to a special commissioner and then exceptions filed by leave of the court to parts of his former accounts, by persons claiming to be creditors, it is not error for the court to refer such former accounts and the exceptions thereto, together with the ’ question as to whether such exceptors are creditors, to the special commissioner for hearing and report.
    5. While a special master commissioner should respond in his report to all the issues, a failure to do so is not usually cause for setting aside the report; because the court has power under Section 5222, Revised Statutes, to modify «the report, and to that end may hear further testimony, and thereby supply the deficiency in the report.
    6. An administrator is chargeable in his accounts as money in his hands, with all debts which he owes individually and unconditionally to the estate.
    7. A debt which he owes as principal, and which is evidenced by his note, signed also by another person who is in ‘fact only surety, is his individual and unconditional debt, and chargeable to him as money in his hands.
    8. Debts owing to the estate by a firm of which he is a member, are not his individual unconditional debts, and are not chargeable to him as money in his hands.
    '9. Where property was sold by a receiver by order of court, a mortgage taken to secure deferred payments, the property insured, and afterward burned, and the insurance money, though paid to the mortgagor, was treated by the parties as if paid to the receiver in discharge of the mortgage, and as then returned to the mortgagor in payment of what the receiver owed him, and receipts taken accordingly, the parties will be held 6ound by the transaction as they have made and treated it.

      10. What a person may he compelled to do, he may safely do without such compulsion.
    11. Money in the hands of an administrator which has yielded, him no profit, and which he has not been ordered to pay out, or which is tied up by litigation in good faith, does not bear interest; and this rule is applicable to debts which the administrator owes to the estate, and which is chargeable-against him as money in his hands.
    12. The debts of an estate must be paid before distribution to heirs; and distribution made to heirs upon the advice of counsel and the probate judge, is made at the peril of the administrator. If the estate proves solvent, he should be credited with such distribution, but if insolvent, he should not receive such credit.
    13. In case of a reference to a special master, his report must find every material fact upon which the judgment of the court is based, and facts not found are presumed not to exist. But facts not found in the report may be supplied by the court upon the hearing of further testimony.
    14. Upon petition in error in the settlement of the accounts oí - an administrator, the judgment may be modified by affirming as to some items, and reversing as to others.
    15. Where there is a reversal as to an item for want of the finding of a fact in the report of the master, the cause as to that ■ item may be remanded to the court below for a finding as to-such fact, and for judgment accordingly.
    16. The .sureties on the bond of an insolvent administrator are liable for money in his hands arising from debts owing by him to the estate, to the same extent that the sureties on the bond of an insolvent executor are liable for such money.
    (Decided October 14, 1902.)
    Error to tbe Circuit Court *of Logan county.
    Joseph W. Janies was appointed administrator of the estate of George Stuts, by the probate court of Logan county, on the sixth day of May, 1885, and removed July 7, 1891.
    When George Stuts died on April 28, 1885, he ivas a member of the firm of Stuts & James, and of the firm of Stuts, James & Neer. Said George Stuts and Joseph W. James were both members of each of said firms, and each firm was largely indebted to said George Stuts at the time of his death.
    An action was brought by Mr. Neer in the court of common pleas, May 13, 1885, for the settlement of both partnerships, and Mr. James individually, and as administrator, was made a party defendant. A receiver was appointed May 14, 1885, and gave bond with sureties who afterward proved insolvent. This action is known in this case as No. 2016. No order of the court, settling these partnerships, was made until April 3, 1893, nearly two years after James ceased to be administrator.
    After the removal Of James, Mr. George L. Stuts was appointed administrator de bonis non. He afterward resigned and was succeeded by John E.- West, March 30, 1899, and he was made a party defendant.
    While James was administrator he filed four accounts, which were duly passed upon by the probate court, and settled, the fourth after exceptions had been filed and heard.
    After his removal James filed his fifth, and final, account, July 18, 1891, and exceptions were filed thereto by the administrator de bonis non, who claimed that the account did not show enough, and by the sureties of James on his bond, who claimed that the account showed too much.
    The probate court referred the account and exceptions to a commissioner under Section 6186, Revised Statutes. After that reference certain persons claiming to be creditors filed exceptions to the first account, and those exceptions, together with a motion by James to strike them from the files, were also referred to the same commissioner, as part of the same cause.

      The commissioner took testimony and filed his report January 19, 1894. Mr. James, alone, filed exceptions to this report. The prohate court overruled his exceptions, and confirmed the report. Mr. James, his sureties, and the administrator de bonis non, excepted, and took and filed a bill of exceptions. The administrator de bonis non appealed the cause to the court of common pleas.
    Upon appeal in the common pleas, Mr. James and his sureties made a motion to hear the case upon the report of the commissioner appointed by the probate court. This motion was overruled, and they excepted.
    The common pleas thereupon, in January, 1896, referred the final and all former accounts and inventory, and all exceptions to a commissioner under said section 6186, with instructions to report without unnecessary delay, to all of which Mr. James and his sureties duly excepted. This second commissioner filed his report March 27, 1899, and said James and his sureties filed exceptions which were heard and partly sustained, and partly overruled, and the report as modified was confirmed, finding $16,681.18 in the hands of Mr. James, and he was ordered to pay that sum over to the administrator de bonis non, to all of which he and his sureties duly excepted, and made a motion to set aside said report, finding and confirmation, and for a new trial, which motion was overruled and exceptions saved, and a bill of exceptions taken and filed, containing all the evidence.
    Upon proceedings in error in the circuit court, it appearing that the amounts owing by the firms of Stuts & James, and Stuts, James & Neer, to the estate of George Stuts, had been charged up to James as administrator, as money by him owing to the estate, and therefore assets in his hands, that court held that debts owed by James as member of a firm could not be regarded as assets in his hands, and that only his individual debts to the estate could be so regarded, and for that reason deducted from the amount found in his hands by the common pleas, all such firm debts, and thereby reduced the amount in his hands to $8,136.81.
    Thereupon Mr. James filed his petition in error in this court, and his sureties joined by filing a cross-petition in error. The administrator do bonis non also filed a cross-petition in error, claiming that the circuit court erred in striking said firm debts from the account.

      Messrs. Keifer & Keifer and Messrs Howenstine d Huston, for plaintiff in error, cited and commented upon the following authorities:

      Cox v. John, 32 Ohio St., 532; Scribner v. Williams, 1 Paige, 550; Case v. Towle, 8 Paige, 479; Champaign Co. (Treas.) v. Norton, 1 Ohio, 270; Brodwell v. Dudry, 2 Re., 388; 2 W. L. M., 581; Bell v. Crawford, 25 Ohio St., 402; Gill v. Geyer, 15 Ohio St., 399; Brooks v. Scobie, 1 Circ. Dec., 194; 1 C. C. R., 348; Cairns v. Hedges, 1 Circ. Dec., 387; 2 C. C. R., 103; Clark v. Bentel, 6 Re., 1205; 11 Bull., 105; Warner v. Webster, 13 Ohio, 505; Williams v. Stevens, 13 Re., 485; 1 C. S. C., 176; Raab’s Estate, 16 Ohio St., 273; Secs. 6186, 6400, 6411, Rev. Stat.; Secs. 5215, 5221, 5213, Rev. Stat.; Lawson v. Bissell, 7 Ohio St., 129; Cincinnati v. Cameron, 33 Ohio St., 356; Kelley v. Stanbery, 13 Ohio, 408; Railway Co. v. Hurd, 17 Ohio St., 144; Central Park Commissioners, In Matter of, 50 N. Y., 493; Reese v. Smyth, 95 N. Y., 645; 2 Enc. Pl. & Pr., 92 and notes; Decker v. Ruckman, 28 N. J., 614; Clair v. Terhune, 35 N. J., 336; Angevine v. Jack
      son, 103 N. Y., 470; Personette v. Johnson, 40 N. J. Eq., 173; Hood, In Matter of, 104 N. Y., 103; Kellogg, In Matter of, 104 N. Y., 648; Swing v. Townsend, 24 Ohio St., 1; Beach on Mod. Eq. Pr., Sec. 981; Ludlow v. Kidd, 3 Ohio, 541; Evans v. Dunn, 26 Ohio St., 439; Neil v. Greenleaf, 26 Ohio St., 567; Rankin v. Hannan, 37 Ohio St., 113; King v. Burdett, 44 W. Va., 561; Eaton v. French, 23 Ohio St., 560; Dunlap v. Robinson, 12 Ohio St., 530; Watson v. Davis, 19 Wend., 371; McNamara v. Spees, 25 Wis., 539; Derby v. Heath, 59 Ohio St., 54; 17 Enc. Pl. & Pr., 1026; Robertson v. Boat Store Co., 6 Dec., 557 4 N. P., 227; DeLong v. Stahl, 13 Kan., 558; Long v. Newhouse, 57 Ohio St., 348; Newman v. Becker, 54 Ohio St., 323; Brown v. Reed, 56 Ohio St., 264; Sec. 6187, Rev. Stat.; Campbell v. McCormick, 1 Circ. Dec., 281; 1 C. C. R., 504; McAfee v. Phillips, 25 Ohio St., 374; Stayner’s Case, 33 Ohio St., 481; Watts v. Watts, 38 Ohio St., 480; Seeger, In re, 1 Dec., 113; 7 N. P., 207; Slagle v. Slagle, 3 Re., 549; Clark v. Clark, 9 Circ. Dec., 476; 16 C. C. R., 103; Kinsella v. DeCamp, 8 Circ. Dec., 352; 15 C. C. R., 494; Johnson v. Johnson, 26 Ohio St., 357; Woodward v. Curtis, 10 Circ. Dec., 400; 19 C. C. R., 15; Hanley v. Levin, 5 Ohio, 227; Powell v. Harter, 5 Ohio, 259; Hurley v. State, 6 Ohio, 399; Wilson v. State, 20 Ohio, 26; Martin v. Bank, 14 Ohio, 187; Smith v. Insurance Co., 62 N. Y., 85; Childs v. Hurd, 32 W. Va., 66; 17 Enc. Pl. & Pr., 1048; Lang v. Brown, 21 Ala., 179; 17 Enc. Pl. & Pr., 1069, 1071; Secs. 6113, 6187, 6402, Rev. Stat.; Delaplane v. Smith, 38 Ohio St., 413; Jones v. Jones, 41 Ohio St., 417; Swan v. Shahan, 1 Circ. Dec., 419; 1 C. C. R., 216; Roby v. Rainsberger, 27 Ohio St., 674; Bridge Co. v. Sargent, 27 Ohio St., 233; Swenson v. Cresop, 28 Ohio St., 668; Pollock v. Cohen, 32 Ohio St., 514; Mar

      tin v. Romy, 41 Ohio St., 141; Commercial Gazette Co. v. Dean, 11 Re., 207; 25 W. L. B., 250; Hites v. Irwin, 13 Ohio St., 283; Ewing v. MoNairy, 20 Ohio St., 315; Witte v. Lockwood, 39 Ohio St., 141; Moore v. Moore, 46 Ohio St., 89; Miller v. Proctor, 20 Ohio. St., 442; Reeves v. Steele, 39 Term. (2 Head), 646;, Might on v. Dawson, 38 Ohio St., 650; Woodmansie v. Woodmansie, 32 Ohio St., 18; Raff’s Guide, 167;, Weyer v. Watt, 48 Ohio St., 545; Piatt v. Longworth, 27 Ohio St., 159; Wake-field’s Estate, In re, 5 Dec., 395; 7 N. P., 562; White v. Moe, 19 Ohio St., 37; Ludlow v. Cooper, 4 Ohio St., 1; Howard v. Babcock, 7 Ohio (pt. 2), 73; Kinney v. Ensign, 35 Mass. (18 Pick.), 232; Rossman v. McFarland, 9 Ohio St., 369; Miller v. Donaldson, 17 Ohio, 266; Wilson v. Wilson, 17 Ohio St., 150; State v. Oil Co., 49 Ohio St., 137; Shields v. O’Dell, 27 Ohio St., 398; McCaughey v. Jacoby, 54 Ohio St., 487; Williams on Exrs., 1123; Walsh v. Miller, 51 Ohio St., 462; Stockton y. Stockton, 40 Ind., 225; Secs. 5833, 5846, Rev. Stat.; Good v. Insurance Co., 43 Ohio St., 394;, Wescott v. Price, Wright, 220; 1 Beach on Mod-Law of Con., Sec. 584; Hale v. Spaulding, 145 Mass.,, 482; Bank v. Hoge, 6 Ohio, 17; Poole v. Munday, 103: Mass., 174; Brown v. Porsche, 5 N. W. Rep., 1011;; Upton v. Badeau, 3 Bard. Sur., 13; McCreight, In rey 9 Dec., 454; 6 N. P., 481; Spurlock v. Earles, 8 Baxt(Tenn.), 437; Lynch v. Divan, 66 Wis., 490; Keegan v.. Smith, 39 N. Y. Sup., 826; Brown v. Harshman, 6 Circ. Dec., 10; 9 C. C. R., 1; McCoy v. Allen, 6 Circ.. Dec., 659; 9 O. C. R., 607; Perkins v. Scott, 6 Circ. Dec.,, 226; 9 C. C. R., 207; Curtis v. Bank, 39 Ohio St., 579 Baucus v. Stover, 89 N. Y., 1, 5; Sec. 6209, Rev. Stat.; Buggies v. Sherman, 14 Johns., 446; Tuttle v. Hued, 8. S. & R., 692; Douthitt v. Douthitt, 1 Ala., 594; 2 Wil liams on Exrs., 1022, 1012; Touchstone, 496; Bac. Abr. Exr. (H), 2; Raff’s Guide, 157; United States v. Eggleston, Sawyer (Ore.), 199; Butterfield v. Smith, 101 U. S., 570; Garber v. Commonwealth, 7 Pa. St., 265; Piper’s Estate, In Matter of, 15 Pa. St., 533; Conger v. Atwood, 28 Ohio St., 134; DeValengin v. Duffy, 39 U. S. (14 Pet.), 282; Thomas v. Moore, 52 Ohio St., 200; Austin v. Munro, 47 N. Y., 360; Arnold v. Donaldson, 46 Ohio St., 73; Westfall v. Dugan, 14 Ohio St, 276; Secs. 6017, 3167, 3170, Rey. Stat.; Dayton v. Bartlett, 38 Ohio St., 357; Fitzpatrick v. Flannagan, 106 U. S., 648; Clay v. Freeman, 118 U. S., 97; Gilliland v. Sellers, 2 Ohio St., 223; Saylor v. Simpson, 45 Ohio St., 141; Spoors v. Coen, 44 Ohio St., 497; Swearingen v. Morris, 14 Ohio St., 424; McDonald v. Aten, 1 Ohio St., 293; Weaver v. Reese, 6 Ohio, 418; Weidig v. Moore, 11 Re., 83; 24 W. L. B., 376; 17 Rep. (Mich.), 369; Emrie v. Gilbert, Wright, 764; Merriweather v. Hardetreau, 51 Tex., 436; Knight v. Hinton, 9 Re., 204; 11 W. L. B., 199; Pomeroy Remedies, Sec. 104; Collyer on Partnership, pages 333, 339, notes; 2 Lindley on Partnership, 1030, note; 2 Lindley on Partnership (1888), p. 568 (34 Cal., 258); Oglesby v. Thompson, 59 Ohio St., 60; Donley v. Bank, 40 Ohio St., 47; Lindley on Partnership, *192-3, *701; Neil v. Greenleaf, 26 Ohio St., 567; Lang v. Oppenheim, 96 Ind., 47; Lindley on Partnership, p. 943, note; Stanberry v. Cattell, 55 Ia., 617; Lindell v. Lee, 34 Mo., 103; 5 Wait Act & Def., 149; Emerson v. Senter, 118 U. S., 1; Collyer on Partnership, pages 333, 339, and notes; Parsons on Partnership, 281; Harris v. Harris, 39 N. H., 45; Ozias v. Tolman, 1 Penn., 191; Young v. Beck, 2 Penn., 663; Murray v. Bogert, 14 Johns., 318; Williams v. Henshaw, 29 Mass. (12 Pick.), 378; 5 Wait Act. & Def., p. 149, Sec. 5; Riddle v. Whitehill, 135 U. S., 621; Choteau v. Barlow, 110 U. S., 238; Bodgers v. Meranda, 7 Ohio St., 179; Bank v. Sawyer, 38 Ohio St., 339; Page v. Thomas, 43 Ohio St., 38; Pearson v. Keedy, 6 Mon. (B.), 128; Hooper v. Hooper, 32 W. Va., 526; 9 S. E. Rep., 937; Kelley v. Greenleaf, 3 Story, 93; Cray v. Kerr, 46 Ohio St., 652; Wickliffe v. Eve, 58 U. S. (17 How.), 468; Shanks v. Klein, 104 U. S., 18; Kreis v. Gorton, 23 Ohio St., 468; Miller v. Florer, 19 Ohio St., 356; Crane, In re Estate, 4 Dec., 398; 29 W. L. B., 93; Norman v. Buckner, 135 U. S., 500; Pomeroy v. Benton, 57 Mo., 531; Bigelow v. Bigelow, 4 Ohio, 138; Tracey v. Card, 2 Ohio St., 431; Martin v. Train, 3 Circ. Dec., 344; 6 C. C. R., 49; 5 Wait Act. & Def., 154; Musser v. Adair, 55 Ohio St., 466; Baucus v. Barr, 45 Hun, 582; Baucus v. Barr, 107 N. Y., 624; Weil v. Guerin, 42 Ohio St., 299; Burgoyne v. Trust Co., 5 Ohio St., 586; Barry v. Foyles, 26 U. S. (1 Pet.), 311; nigh on Receivers, Sec. 142; Beach on Receivers, Secs. 257, 260, 291, 297, 302, 585; Biggin v. Creath, 60 Ohio St., 114; Meier v. Herancourt, 6 Re., 1164; 8 W. L. B., 29; Lucht v. Behrens, 28 Ohio St., 231, 240; Carter v. Carter, 3 Ray. S. J., 645; Carpenter v. Butler, 8 Mees. & Wels., 212; 1 Green Eq., 23; Lyon v. Osgood, 106 Ind., 142; Bank v. Hart, 5 Ohio St., 33; United States v. Archer, 1 Wall. Jr., 173; Foster v. Wise, 46 Ohio St., 20; Slagle v. Entrekin, 44 Ohio St., 637; Brown v. Reed, 56 Ohio St., 264; Cooch v. Irwin, 7 Ohio St., 22; Cooley v. Vansyckle, 14 N. J. Eq., 496; 1 Story Eq. Jur., Secs. 887, 894, 1573-4; 2 Story Eq. Jur., Secs. 324-7, 498b,- Harker v. Irick, 10 N. J. Eq., 269; Ford v. Osborne, 45 Ohio St., 1; Olinger v. McGuffey, 55 Ohio St., 661; Stewart v. Gordon, 60 Ohio St., 170;
      State v. Cutting, 2 Ohio St., 1; Refrigerating Co. v. Gillette, 28 Fed. Rep., 673; Kimberly v. Arms, 129 U. S., 512; S. & C. Stat., Secs. 168, 173; Ex parte Gray, Bailey’s Eq., 77; Harding v. Harding, 54 N. E. Rep., 587; Keenan v. Saxton, 13 Ohio, 41; Owens v. Rhodes, 10 Fla., 319; 17 Enc. Pl. & Pr., 1008; Doyle v. Railroad Co., 136 N. Y., 505; Parker v. Nickerson, 137 Mass., 487; Herrick v. Belknap, 27 Vt., 673; Walker v. Whitehead, 83 U. S. (16 Wall.), 314; Insurance Co. v. Leslie, 47 Ohio St., 409; Simpson v. Serviss, 2 Circ. Dec., 246; 3 C. C. B., 433; Kunneke v. Maple, 60 Ohio Bt., 1; Duke v. Duke, 26 Ala., 673; Redfield on Wills (pt. 2), 405;-3 Toller on Exrs., Ch. 10, p. 495; Field v. Hitchcock, 31 Mass. (14 Pick.), 405; McLellan’s Appeal, 76 Pa. St., 231; Schonler on Exrs., Sec. 528; Ramsey v. McGregor, 13 Re., 578; 1 C. S. C. 327; Negley v. Gard, 20 Ohio, 310; Colbert v. Daniels, 32 Ala., 314; Rodman v. Rodrigan, 54 Ind., 444; Beach on Contracts, Sec. 907; Flickinger v. Sawn, 40 Ohio St., 591; 1 Greenl. Ry., 23, 203; Condit v. Winslow, 106 Ind., 142; Beach on Mod. Laws of Con., Sec. 807; Riley v. Kepler, 94 Ind., 308; 11 Am. & Eng. Ency. Law, 968; Clift y. White, 12 N. Y., 519; Conner v. Bird, 1 Leg. Chron. (Pa.), 17; Wheeler v. Bolton, 92 Cal., 159; Jones v. Ward, 10 Yerg. (Tenn.), 160; Douglas v. Day, 28 Ohio St., 175; Blizzard v. Filler, 20 Ohio, 479; Wilson v. Pelton, 40 Ohio St., 306; Mighton v. Dawson, 38 Ohio St., 650; Stose v. People, 25 Ill., 492; Short v. Johnson, 25 Ill., 405; In re Richart, 58 Ill. App., 91; Liddicoat v. Treglown, 6 Colo., 47; Lee v. Waller, 3 Mete. (Ky.), 61; Mattingly v. Corbit, 7 Mon. (B.), 376; State v. Humphreys, 7 Ohio (pt. 1), 223; Stewart v. Champaign Co., 4 Ohio, 98; Thomas v. White, 3 Lift. (Ky.), 177; East v. East, 5 Hare, 348; Hayward v. Kinney, 12 Mad., 573; Pearson v. Keedy,
      6 Mon. (B.), 128; Greer v. State, 2 Ohio St., 574; Shipe’s Appeal, 114 Pa. St., 205; McGarry v. Smith, 22 Ohio St., 190; Mercer v. Cunningham, 53 Ohio St., .353; Banning v. Gotshall, 62 Ohio St., 210; Woodhouse v. Phelps, 51 Conn., 521; 20 Am. Dig., 456; Hudson v. Wallace, 1 Rich. Eq., 1; Spann v. Jennings, 1 Hill Eq., 324; Cain v. Hawkins, 50 N. C., 192; Walworth v. Abel, 52 Pa. St., 370; Quinlan v. Myers, 29 Ohio St., 500; Herman on Estoppel, Secs. 768-9,1126; Sillitoe, Ex parte, 1 Gl. & J., 374; Sec. 5064, Rev. Stat.; Levi v. Daniels, 22 Ohio St., 38; General Buell v. Long, 18 Ohio St., 521; Hamilton v. Merrill, 37 Ohio St., 682; Railroad Co. v. Marshall, 11 Ohio St., 497; Yeasie v. McGugin, 40 Ohio St., 365; 31c-Cleary v. McLain, 2 Ohio St., 368; Rohn v. Dunbar, 13 Ohio St., 572; 12 Enc. Pl. & Pr., 179; Kinkead’s Prac., Secs. 74-5, 78-9, 86-7; Meinzer v. Bevington, 42 Ohio St., 325; Casoni v. Jerome, 58 N. Y., 316; Garver v. Tisinger, 46 Ohio St., 65; Nevitt v. Woodburn, 160 Ill., 203; Wharton v. Marange, 62 Ala., 20; Gerould v. Wilson, 81 N. Y., 573; Matter of Moehring, 154 N. Y., 423; Kelly v. Weddle, 1 Ind., 550; Am. Law of Admrs., Sec. 36; Radovitch, In re, 74 Cal., 536; Gutridge v. Vanatta, 27 Ohio St., 366; Bourne v. Todd, 63 Me., 427; Giauque’s Settlement of Estates, (5 ed.), 228; Newton v. Hammond, 38 Ohio St., 430; Gorman v. Taylor, 43 Ohio St., 86; Braiden v. Mercer, 44 Ohio St., 339; Schwab v. Rappold, 9 Re., 340; 12 W. L. B., 197; State v. Goeble, 1 Circ. Dec., 307; 1 C. C. R., 550; Beall v. New Mexico, 83 U. S. (16 Wall.), 535; Hanifan v. Needles, 108 Ill., 403; Marsh v. People, 15 Ill., 286; McMurdo v. Prentis, 5 Rand., 51; Flinn v. Chase, 4 Denio, 85; Haynes v. Meeks, 10 Cal., 110; Weyer v. Watt, 48 Ohio St., 545; Balch v. Hooper, 32 Minn., 158; State v. Bloch, 65 Ohio St., 370; State v. Archi
      bald, 52 Ohio St., 1; Hagany v. Cohnen, 29 Ohio St., 82; Brandt on Suretyship, Secs. 496, 532; Bourne v. Todd, 63 Me., 427.

      Messrs. West & West, for defendants in error, cited and commented upon the following authorities:

      Raab’s Estate, 16 Ohio St., 283; Bell v. Crawford,. 25 Ohio St., 402; Barger v. Cochran, 15 Ohio St., 460; Chinn v. Trustees, 32 Ohio St., 236; Brooks v. Scobie,. 1 Circ. Dec., 394; 1 C. C. R., 348; McGaughey v. Jacoby, 54 Ohio St., 487; Lawson v. Bissell, 7 Ohio St., 129; Cincinnati v. Cameron, 33 Ohio St., 336; Gill v. Geyer, 15 Ohio St., 399; Cairns v. Hedges, 1 Circ. Dec., 387; 2 C. C. R., 103; Broadwell v. Dudry, 2 Re., 388; 2 W. L. M., 581; Clark v. Bcntel, 6 Re., 1205; 11 W. L. B., 105; Woodtoard v. Cibrtis, 10 Circ. Dec., 400;. 19 C. O. R., 15; Johnson v. Johnson, 26 Ohio St., 357 Stayner’s Case, 33 Ohio St., 481; Campbell v. McCormick, 1 Circ. Dec., 281; 1 C. C. R., 504; Cooch v. Irwin, 7 Ohio St., 22; Leland v. Felton, 83 Mass. (1 Allen), 531; Bigelow v. Bigelow, 4 Ohio, 138; Hall v. Pratt, Ohio, 72; Tracy v. Card, 2 Ohio St., 431; Martin v. Train, 3 Circ. Dec., 344; 6 C. C. R., 49; Miller v. Donaldson, 17 Ohio, 264; Shields v. Odell, 27 Ohio St.,. 398; Matter of Accounting of Consalas, 65 N. Y., 340;. Baucus v. Stover, 89 N. Y., 1; Soverhill v. Snyden, 59 N. Y., 140; Ipswich Mfg. Co. y. Story, 46 Mass. (5 Mete.), 310; Slagle v. Entrekin, 44 Ohio St., 637; Brockmann v. Consolidated Building & Savings Co. 7 Dec., 291; 5 N. P., 61; Elliott on App. Proced., See. 630; Curtis v. Lynch, 19 Ohio St., 392; Douglas v. Day, 28 Ohio St., 175; Weaver v. Reese, 6 Ohio, 418 ; Gilliland v. Sellers, 2 Ohio St., 223.
   Burket, C. J.

After the cause had been heard in the probate court upon the report of the master commissioner appointed by that court, and the exceptions thereto, and after a judgment had been rendered finding the amount in the hands of Mr. James as administrator, the administrator de bonis non took and perfected an appeal to the court of common pleas, and in that court Mr. James and his sureties insisted that the court should hear the cause upon the report of the .master so appointed by the probate court; but the common pleas refused to do so, and sitting on appeal as a court of probate, appointed a special commissioner and referred the cause to him under Section 6186, Revised Statutes. That section reads as follows:

“The court may, if it shall’ deem it expedient and proper, refer the account and the exceptions thereto, if any, to a special commissioner, appointed by the court for that purpose.”

To this action of the common pleas Mr. James and his sureties excepted, and assign the same for error here, claiming that the appeal did not vacate the report of the master, and that the common pleas had no jurisdiction to appoint a master.

This claim is not tenable. By Section 6407, Revised Statutes, it is provided that on appeal from the probate court to the common pleas, the cause shall be tried, heard and decided in the same manner as though the common pleas had original jurisdiction thereof.

This being so, it is clear that if the common pleas had original jurisdiction, as it once had, of the settlement of accounts of administrators, it could appoint a special commissioner under said section 6186, and refer the cause to him for hearing and report. If section 6407 does not have reference to original jurisdiction in probate matters, but means that the cause on appeal shall be tried, heard and decided in the same manner as causes in which the common pleas now has original jurisdiction, then it follows that the common pleas might refer the cause to a special master under Section 5222, Revised Statutes; so that under either construction the common pleas had the power to appoint a special master and refer the cause to him for hearing and report.

When what is now section 6186 was first enacted in 1840, it contained-the provision that the reference should be “according to the usages of courts of chancery;” and so long as this provision remained in the section, the course of proceeding upon such a reference was according to the rules in equity practice relating to masters. Some of those rules were very cumbersome and the proceedings technical, as for instance, no exception to a master’s report could be taken unless a formal objection had previously been filed at the proper time, and certain reports of a-master did not need confirmation, while as to others, confirmation was required.

When the statutes were revised in 1880, the words, “according to the usages of courts of chancery,” were stricken out of the section, and the words “appointed by the court for that purpose,” were inserted. At the same time the statute of March 30, 1868, 65 O. L., 40, which first provided for referring causes to a special master, was also revised and carried into the Revised Statutes as sections 5221, 5222, et seq., and thereby the chancery practice was codified and condensed into a few sentences, and became part of the civil code, and proceedings before a master, instead of being according to the usages of chancery, are now according to the code of civil procedure, and when a reference is made by the probate court, or by the court of common pleas on appeal, under said section 6186, the proceeding is as is provided in said section 5222, that is, “to take the testimony in writing, and report the same to the court and therewith his conclusions on the law and facts involved in the issues, which report may be excepted to by the parties, and confirmed, modified, or set aside by the court.” In a reference of the accounts of an administrator and exceptions thereto, the account and exceptions constitute the issues, and the administrator and the exceptors are the parties.

As the administration statute gives no power to a probate court to refer an account to a referee, and as Section 5215, Revised Statutes, prohibits a reference by the probate court, unless ty consent of parties, the effort of the probate court to clothe its special master commissioner “with all the powers of a referee” was void, and did not, in legal effect, confer any powers as referee upon him. He was simply a special master commissioner, and governed by the laws applicable to such. As such master, his report was carried by the appeal to the court of common pleas, and that court might, in its discretion, hear the cause upon such report, and such other testimony as might he offered, or if it deemed “it expedient and proper,” it might refer the account and exceptions to a special commissioner appointed by that court for that purpose. It would not be error to pursue either course.

It is also urged by Mr. James and his sureties that the master appointed by the common pleas did' not make and file his report within ninety days after the ■cause was finally submitted to him, and that at the expiration of ninety days he lost jurisdiction, and that his report made after that time was null and void.

For this claim reliance is had upon the statute 90 O. L., 192, Bates 557-1 and 557-2. This statute reads as follows:

1. “Any cause now pending, or that may hereafter be begun in any court of record in this state, when sub- . niitted on motion or demurrer, shall be determined and adjudicated thereon by such court within thirty days after such submission. And any such cause, when submitted to the court on proceedings in error, or on final trial on the issues joined, shall be determined and adjudicated within ninety days after such submission.”
2. “This act shall apply to all causes sent to a referee or special master, and to all motions affecting the confirmation, modification, or vacation of any report of such reference or master.”

This statute is directory merely, and does not have the effect to deprive the court, referee, or special master of jurisdiction. The object of the statute is to secure speedy action by the court, referees and masters; but to take away jurisdiction would have the opposite effect, and cause intolerable delay. A judge takes an oath, faithfully and impartially to discharge and perform all the duties incumbent on him as such judge. A referee is sworn well and faithfully to hear and examine the cause and to make a just and true report thereon. A special master commissioner is sworn faithfully to discharge his duties. These oaths all have reference, among other things, to said statute, and thereby all judges, referees and masters táke an oath to obey that statute, and to make their decisions within the time required. The oath and statute are binding on their conscience, but are not matters affecting their jurisdiction. The decisions as to justices of the peace under Section 6579, Revised Statutes, are not applicable to courts, referees, or masters.

All the accounts were referred to the master by the court of common pleas to hear and determine as to all the exceptions, whether to the last or former accounts, without first having a determination by the court that there were errors or mistakes in the former accounts; and this is assigned for cause to set aside the report of the master. We think there is no error in this. The court could determine this question much better after the master had passed upon it than without his assistance.

It is also urged that the master did not respond in his report to all the issues, and it is claimed that the whole report should be set aside for that reason. This is not tenable. Under the old chancery practice a review might be had for such a cause, and if necessary further testimony taken, but under said section 5222, the court may modify the report, and for that purpose hear testimony itself, or if thought best the cause may be recommitted to the master, as upon review, and thereby the deficiency may be corrected or supplied. But such deficiency in the report can be no good cause for setting the report aside, and going over the whole case anew.

This disposes of the questions of practice and we will now consider the case upon its merits.

While under the rule of decision of this court in Bigelow v. Bigelow, 4 Ohio, 138; Hall v. Pratt, 5 Ohio, 72; and Tracy v. Card, 2 Ohio St., 431, debts owing by an administrator to the estate are to be regarded and treated as assets in his hands, the rule is so far unsatisfactory that it should not be extended, but should be confined to cases in which the administrator owes the debt individually and unconditionally. The statute, section 6069, when fairly construed, does not go further. See also Shields v. Odell, 27 Ohio St., 398, and Rossman v. McFarland, 9 Ohio St., 369.

The circuit court was therefore right in deducting the debts owed by the firms with which Mr. James was. connected, and its judgment in that behalf is affirmed.

A note of over $600, signed by Mr. James and one' S. P. Hanks, was charged against the administrator as-assets in his hands, and to which objection was made-by him and his sureties. The evidence showed, and the master found, that this note was the individual debt of Mr. James, and that Mr. Hanks was surety thereon for him. That being so it was his individual debt, for which he was unconditionally liable, and the same was properly charged against him.

The receiver of the two firms of which George Stuts. and Mr. James were members, sold the property of the two firms by order of the court, and the same was bought in by Mr. James and his late partner, Mr. Neer, and they gave their notes secured by mortgage on the property. Afterward Mr. Neer sold out to Mr. James, ■ and the latter assumed the payment of the notes and mortgage, so that the matter then stood the same as if Mr. James had purchased the property himself and given his own notes and mortgage therefor. Part of the property thus mortgaged was burned and the insurance money, over $3,000, which should have been paid to the mortgagee,, the receiver, to discharge the mortgage, was paid to Mr. James, so that in legal effect he received this money from the receiver, not. for himself individually as he claims, but for himself as administrator, because the receiver owed him nothing individually,, but did owe him this money as administrator, provided that all the debts of the two firms, were paid, as they were, and the court had ordered him to pay the insurance money over to the administrator of George Stuts, deceased. But while all the-debts had been paid by the receiver, it is conceded that the court made no order for the payment of this insurance money to the administrator, James, and therefore it is claimed that he could not, and did not, in legal effect, receive this money as such administrator. But it must be remembered that as this insurance money was the fruits of the burned mortgaged property, it should have gone to the receiver to discharge the mortgage held by him, and the debts being paid the receiver could be compelled, by order of court, to pay it over to James as administrator, and James, as such administrator, could be compelled to receive and charge himself therewith. What the parties, or either of them, might be compelled to do, they may do without such compulsion. Acting upon this principle, Mr. James as administrator, on December 31, 1886, gave a receipt to the receiver for $7,107.48, which included this insurance money, and the court charged him therewith in said case No. 2016, upon the final hearing nearly two years after his removal, but the money was received in 1886 while he was yet administrator, and this judgment in No. 2016 was only compelling him, after his removal, to do what he should have done before his removal, and what he did without compulsion by the giving of said receipt. The receiver accepted said receipt, and released the mortgages of record. .

James individually, and as administrator, was a party to case No. 2016, and the court having adjudged m that case, that he was chargeable with the amount of that receipt, the matter was thereby finally adjudicated against him, and he cannot be heard to litigate the question over again.

Each commissioner to whom the case was referred held the administrator chargeable, but in part upon reasons different from the above. In view of the whole case we are clear that he is properly chargeable with the amount of said receipt, as money which came into his hands as administrator, although it was received by him before the giving of said receipt, but was by the act of both parties turned into estate money in the hands of the administrator.

The balance of the amount of the receipt over and above the insurance money, was the proceeds of the sale of the mortgaged property, and clearly should have been applied to discharge the mortgage.

There are various charges of interest on money charged against the administrator as assets in his hands, amounting to $3,537.45. These items of interest should not be charged against him, for the reason that assets in the hands of an administrator, which have not been ordered by the court to be paid out or distributed, or which are tied up by litigation in good faith, or upon which no profit has been received, do not bear interest. Sections 6179 and 6180, Revised Statutes; Cooch v. Irwin, 7 Ohio St., 22, 29, 30.

None of the items upon which interest is charged against the administrator come within the above rule, and therefore it was error to charge said interest, and the same will be deducted.

Upon the advice of counsel and the probate judge, the administrator distributed among the heirs of George Stuts, deceased, the sum of $2,471.09, and received credit therefor in his first account. After the case had been referred to a commissioner by the probate court, certain persons claiming to be creditors, filed exceptions to this item of distribution, by leave of the court, and the exceptions were considered by both commissioners and sustained, and the administrator received no credit for this item of distribution in the report of the master. .

It is urged in his behalf, that as the distribution was made upon advice of counsel and the probate judge, that the administrator should not suffer, and that he should receive credit therefor. This is not tenable. The statute requires that all debts shall be first paid, and distribution made of the remainder. The advice ■of counsel and of the probate judge cannot change the statute. Distribution under such circumstances is made by the administrator at his peril. If the estate proves to be solvent he should be duly credited, but if insolvent, he should receive no credit. As between ■creditors and the administrator, the creditors have the better right.

There is no finding as to whether the estate of ■George Stuts, deceased, is solvent or insolvent, nor whether said sum of $2,471.09 or any part thereof, will be required to pay the debts and costs of the estate.

By'virtue of Section 5205, Revised Statutes, a court may enter judgment without finding the facts upon which the judgment is based, except generally, and such is also the rule in equity practice; but when a ■court makes a special finding of facts, as required by Sections 5205 and 6710, Revised Statutes/ or when a cause is referred to a referee or special master, the statute requiring that he report bis conclusions on the law and facts, only such .judgment in such cases can be rendered as is warranted by the facts found; and facts not found are presumed not to exist. Leach v. Church, 10 Ohio St., 148; Jones v. Brown, 11 Ohio St., 601; Springer v. Avondale, 35 Ohio St., 620; McHenry v. Carson, 41 Ohio St., 212; Albright v. Hawk, 52 Ohio St., 362.

•As the master in this case does not find as a fact "that the Stuts estate is insolvent, there is no warrant for disallowing said item of distribution. Upon the hearing in the common pleas that court might have taken testimony as to the solvency of the estate, and modified the report accordingly, and it is not too late to do that yet. The judgment disallowing that item will be reversed, and the cause, as to that item, remanded to the court of common pleas to take testimony as to the solvency or insolvency of the estate of George Stuts, deceased, and render judgment accordingly.

After deducting said items of interest so improperly-charged, $3,537.45, and also said item of distribution, $2,471.09 so remanded to the court of common pleas, from said sum of $8,136.81 so adjudged in the hands of said administrator by the circuit court, we find in his hands, to be paid over to the present administrator cZe bonis non, the sum of $2,128.27, and to the extent of that sum, the judgment is affirmed, and as to said sum of $3,537.45, interest so improperly charged, the judgment is reversed, and judgment rendered in favor of said plaintiff in error.

It is conceded that said Joseph W. James is insolvent, and his sureties being in this case by cross-petition, claim that the sureties of an insolvent administrator can not be held for assets in his hands consisting of what he owed the estate at the time of his appointment.

As this court in McGaughey v. Jacoby, 54 Ohio St., 487, held that the sureties of' an insolvent executor were liable for such assets, it must follow that the sureties of an insolvent administrator are also liable,, because upon that question there is no difference in principle between the two, and no distinction can be made.

Judgment modified.

Spear, Davis, Shauck, Price and Crew, JJ.,, concur.


author: By the Court:

text:
    State of Ohio v. Ehinger.

      Sale of oleomargarine — Trial for — Not error to permit expert chemist to testify, when.

    On the trial of one charged with selling oleomargarine containing coloring matter, it is not error to permit a chemist experienced in the analysis of food products to testify that the article sold resembles, is a substitute for, or imitation of,' butt
    (Decided October 14, 1902.)
    Exceptions to the decision of the Common Pleas Court of Hamilton county.
    Katie Ehinger was tried before a justice of the peace of Hamilton county, and a jury, upon the charge that' she did “unlawfully sell and deliver to one Anthony Sauer one-half pound of oleomargarine, said oleomargarine being a substance in the form of butter, and containing only 4.75 per cent, of butter fats, and made as a substitute for and in imitation of butter, which-said oleomargarine, when so sold, as aforesaid, contained coloring matter, to-wit, butter yellow, contrary to the statute in such cases made and provided.” The jury returned a verdict of guilty, which was followed by an appropriate judgment, the motion for a new trial having been overruled.
    Numerous exceptions were taken upon the trial, and presented to the court of common pleas by a petition in error for the reversal of the judgment. In the court of common pleas, the judgment was reversed because, upon the trial, a witness who had qualified as an expert chemist experienced in the analysis of food products, had been permitted to testify, against the objec-; tion of the accused, that a sample of the article sold “looked like and was a substitute for or imitation of butter.”
    The prosecuting attorney presents here his exception to that ruling of the court of common pleas.

      Mr. O. J. Renner, for plaintiff.

      Mr. Edward M. Ballard, for defendant, cited and commented upon the following authorities:

      Commonwealth v. Filburn, 119 Mass., 297; Birney v. State, 8 Ohio, 230; Commonwealth v. Bean, 80 Mass. (14 Gray), 52; Commonwealth v. Barrett, 108 Mass., 302; State v. Bierce, 27 Conn., 319; Pringle v. State, 1 Re., 283; 7 W. L. J., 67; Torpedo Co. v. Fishburn, 61 Ohio St., 608; Brandon v. Railway Co., 8 Circ. Dec., 642; 17 C. C. R., 705; Sell v. Ernsberger, 4 Circ. Dec., 100; 8 C. C. R., 499; Manke v. People, 24 Hun (N. Y.), 316; Rogers on Expert Testimony (2 ed.), Sec. 10; Stephen on Ev., Art. 48; Cincinnati v. May, 20 Ohio, 211; Turnpike Co. v. Coover, 26 Ohio St., 520; Railroad Co. v. Schultz, 43 Ohio St., 270; Foy v. Railway Co., 6 Circ. Dec., 391; 10 C. C. R., 151; Railroad Co. v. Morey, 47 Ohio St., 207.
   By the Court:

The witness having qualified as an expert chemist experienced in the analysis of food products, might testify to the resemblance of the article sold to that whose sale the statute prohibits. The question for the determination of the jury was whether the accused had sold oleomargarine containing coloring matter, which is forbidden by Section 4200-16, Revised Statutes. It is true that the affidavit not only charged the act which this section prohibits, but it unnecessarily embraced the terms of section 4200-19 by which oleomargarine is defined. But this did not disqualify the witness to testify to that with respect to which he was especially informed, and which directly tended to show the commission of the forbidden act.

Exception sustained.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.