author: Ashburn, J.

text:
    Pollock v. Cohen.
    1. Questions, other than such as affect jurisdiction, will not be reviewed in a court of last resort, which were omitted to be presented to the district court when sitting as a court of error on final judgments rendered by the court of common pleas.
    2. Questions of error, not specifically assigned, are presumed to be waived by a party who claims there is error, to his prejudice, in the record.
    3. The right to have an action removed from state to federal jurisdiction, • under the act of congress approved March 2, 1867, is a personal right which may be waived, and whether a party has waived his right of transfer, and submitted his cause for final adjudication in the state court, is a question to be determined from the record.'

      4. Where a case is brought a second time, on the same record, by petition in error, all questions on such record will be deemed settled by the first adjudication. This rule extends not only to questions actually presented, but to all questions existing on the record that might have been presented for adjudication in the first petition in error. In such case the second petition in error should be dismissed.
    5. Where authority to perform a specific act, in specified modes, is conferred upon an agent by a regularly executed power of attorney, and general words are also used, the general words are limited by and to be construed with reference to the modes specifically named.
    6. Hence, authority in such instrument to collect or secure a claim by note, bill of sale or mortgage, coupled with the words, “ or any way to settle the above bill,” is not authority to the agent to make an absolute purchase of the property of the debtor, and create a debt thereby against the principal, to secure the claim.
    7. When the authority conferred on an agent is by an instrument in writing, and is special, parol evidence is inadmissible to vary or affect its terms; questions arising on the trial, as to the scope of the authority conferred by such instrument, must be determined by the court. Oliver v. Sterling et al., 20 Ohio St. 391, considered and distinguished.
    8. Acts of an agent done without authority, subsequently ratified by the principal, with a knowledge of all the circumstances attending the transaction, refer back and bind the principal from their inception. Where, however, intervening rights have been acquired by a third party, such intervening rights can not be injuriously affected by the ratification.
    Error to the District Court of Meigs couoty.
    In 1867, plaintiff in error, a citizen of the State of Maryland, brought a civil action in the Court of Common Pleas of Meigs county, Ohio, against defendant to recover damages for the alleged conversion of certain merchandise, the property of plaintiff, of the value of three thousand dollars.
    After the case had progressed, but before final trial, plaintiff filed in the state .court his petition, and gave a sufficient'undertaking, under the provisions of the act of congress of 1867, known as the local prejudice act ” for the removal of the action into the United States Circuit Court for the Southern District of Ohio. His application was overruled in the state court. To this judgment plaintiff' excepted on the record. He failed to file copies of the necessary papers for remo val in the circuit court, seemingly acquiescing in the j udgment of the state courts, until long after the affirmance of the judgment of the court of common pleas by the district court. This will more fully appear in the progress of the case.
    In May, 1867, one Rudolph Bornstien, was doing business as a retail merchant in Pomeroy, Ohio. Because of some personal trouble, he left Ohio, putting his business in the hands of his brother, Herman Bornstien. When Rudolph went away, he was indebted, as is claimed, to plaintiff in the sum of $1,948.50. Toward the close of May, 1867,, plaintiff gave his clerk, Joseph A. Schloss, a power of attorney, as his agent, to proceed to Pomeroy, Ohio, to collect this claim from Rudolph Bornstien. This power of attorney was dated May 24, 1867, and is copied in the opinion.
    Schloss found Herman Bornstein at Pomeroy in possession of his brother’s store, and acting for him under the' authority of a power of attorney, executed to him by Rudolph, dated May 7, 1867. After some consultation,. Schloss bought of Herman, as agent of Rudolph Bornstien, the entire stock of goods, allowing for them $4,769.96. The difference between plaintiff’s claim and the invoice of the goods was $2,821.46. This difference Schloss paid Herman Bornstien, using about $1,000 or $1,200 of plaintiff’s money then in his possession, advancing the balance himself. Out of this amount paid by Schloss, Herman kept $555.00, put the remainder in a package and handed it to Schloss to be carried by him, and delivered to Rudolph Bornstien. Schloss then put Herman in possession of the store room and goods, at the wages of $100 per month, and about the 29-th of May, he returned to Baltimore, told plaintiff’ “ that it was all right,” immediately went to Philadelphia on business, and did not report to plaintiff in full his transactions, at Pomeroy, until about the 5th or 6th of July afterward, when they were approved by plaintiff.
    Afterward, about June 24, 1867, the defendant claiming that Rudolph Bornstien was indebted to him in a large sum, caused the goods transferred to plaintiff by Bornstien to be attached as the property of Rudolph Bornstien. In the attachment proceedings,, the goods attached were appraised at $2,994.16. Pollock instituted the action in the Common Pleas Court of Meigs county, to recover the value of the goods so attached.
    On this trial, after Pollock had closed his evidence, Cohen moved the court for a non-suit, which motion was sustained, the caso withdrawn from the jury, and a judgment given Cohen for costs. To. this action of the court, Poll.ock excepted, and tendered his bill of exceptions, which was made a part of the record in the case.
    In March, 1872, plaintiff filed- a petition in error against defendant, in the District Court of Meigs county, assigning for error that:
    1. The court erred in taking the cause from the jury and granting a non-suit on the motion, of the counsel for the defendant.
    2. The court erred in non-suiting plaintiff and rendering a judgment against him for costs.

      3. The court erred iu withdrawing the trial of the cause from the jury and non-suiting the plaintiff, on the motion of the defendant’s counsel.
    . 4. That the judgment of the court was given for Wolf Cohen when it ought to have been given for Moses Pollock; according to the law of the land.
    At the April term, 1872, of the district court, the petition in error was heard, and the judgment of the common pleas affirmed — Pollock, by counsel, excepting.
    Afterward, the exact time not appearing, plaintiff filed and prosecuted what is called a second petition in error, on the same record, in which second petition in error plaintiff assigned for error, that:
    1. The court of common pleas erred in overruling the motion of the plaintiff to transfer and remove the cause to' the United States Court.
    2. The court erred in dismissing the petition of the plaintiff to remove the.cause to the United States Court.
    3. The court erred in assuming jurisdiction of the case after the filing of the motion to remove.
    4. Other errors.
    The judgment of the district court being adverse to plaintiff, a petition in error is here prosecuted, which was filed in the supreme court, in June, 1874, wherein the errors assigned are substantially a collection of all the errors assigned on the first and second petitions in error in the District Court of Meigs county.

      Grosvenor & Vorhes, for plaintiff in error.

      Paine § Sibley, and S. Nash, for defendant in error.
   Ashburn, J.

The plaintiff was a citizen of Maryland, and defendant a citizen of Ohio. The amount claimed in the petition exceeded five hundred dollars. These facts gave the plaintiff, on filing a petition for that purpose, and giving an undertaking as required by the act of congress of March 2,1867, a legal standing to have his cause of action tiansferred to a federal court.

The question now is, did plaintiff abandon his right to removal, and submit his action to the jurisdiction of the state court for final adjudication ?

We think he did. We think this is made manifest by his conduct in reference to the case, as shown by the record.

The original cause of action was one over which the court of common pleas had jurisdiction. By voluntarily selecting the state court as the forum in which to bring his action, he submitted his person and cause of action to that jurisdiction.

When the state court ruled adversely upon his application for removal, he had then a right, under the provisions of the act of congress of 1887, as settled by numerous state and federal decisions, to perfect the transfer by filing “ copies of all process, pleadings,” etc., in the proper federal court, on the first day of the next session thereof. This was not done. Without inquiring here as to the legal necessity of his taking that step to perfect the transfer, we think such omission a proper fact to be considered, as tending to show a waiver of his right and evincive of his purpose to abide by and in state jurisdiction.

To the adverse ruling of the state court on the motion to remove, plaintiff caused an exception to be noted on the journal, and after that, so far as we are advised by the record, submitted uncomplainingly to a final trial in the state court.

After the judgment of nonsuit in the court of common pleas, he filed and prosecuted to final judgment a petition in error, in the State District Court. In that proceeding he did not complain that the court of common.pleas had erred in refusing to allow a removal of his cause into the United States Court. He assigned no error grounded on the jurisdictional judgment of the court. His only grievance alleged was that the state court had erred in granting a nonsuit. It is a fair legal presumption, to be drawn from his silence in that respect, that he was acquiescing in the jurisdiction of the state court. Indeed, we think his second voluntary submission, by his own affirmative action, to the jurisdiction of a state court shows an abandonment of his right to removal.

lie had an undoubted personal right, in the first instance, to select a jurisdiction in which to bring his action. Ills right, on taking the proper- steps, to have his action transferred from state to federal jurisdiction was equally a personal privilege, which he might assert or abandon at his pleasure. Having made his selection, we do not feel warranted in saying it was error for him not to have chosen otherwise.

Having failed to obtain a reversal of the judgment of the court of common pleas in the district court, he afterward prosecuted in that court, what may be called a second petition in error, in which the only errors assigned amounted to this, that the court of common pleas had erred in dismissing his petition for removal, and in assuming jurisdiction of the action after he had filed his petition to remove. The second assignments of error, and the causes for error assigned against the judgment of nonsuit in his first petition in error, are all assigned for error in this court. As already stated, neither of the causes for error assigned in the second petition in error were assigned in the first.' Eor this and other reasons already indicated, we think plaintiff voluntarily assented to the jurisdiction of the state court, and abandoned his right of removal.

The errors assigned in the second petition in error, and not assigned in the first, bat brought into the petition in error in this court, will be dropped out, aud, because improperly assigned here, they will be treated as though not assigned.

It is well settled by authority, and is a doctrine sound in principle, that all questions which existed on the record, and could have been considered on the first petition in error, must ever afterward be treated as settled by the first adjudication of the reviewing court.

The time should come, in the history of a cause, when litigation must end. If the failing party was allowed to prosecute a new petition in error, on the same record, whenever he imagined he had discovered a new ground of error not previously assigned, litigation would be interminable. Such a practice would violate well-settled principles of law and be against public policy. Evans v. St. John, 9 Porter, 186; Zimmerman v. Turner et al., 24 Wis. 483; Lallard v. Lallard, 5 B. Mon. 340; Headley et al. v. Challiss, 15 Kans. 602; Erring v. McNairy et al, 20 Ohio St. 315; Peirce v. Eneeland et al., 9 Wis. 23.

While I fully agree with those of my brethren who concur in this ruling, I would prefer to put the ruling on another ground. The act of congress, approved March 2, 1867, provides that the party entitled to a removal shall file his petition for removal, and “ offer good and sufficient surety for Ms entering in such court, on the first day of its session, copies of all process, pleadings, depositions, testimony, and other proceedings in said suit, . . . and the said copies being entered, as aforesaid, in such court of the United States, the suit shall then proceed in the same manner as if it had beeu brought there by original process:” 14 U. Stat. at Large, 558-9.

I think this portion of the statute means something. The federal court obtains actual jurisdiction only when copies of the process, etc., are filed in that court. The statute imposes the duty of filing the jurisdictional papers in the federal court upon the petitioner. Not only must he file the proper papers in the federal court, but he must, in order to complete the transfer, file them there by a given time, viz., on the first day of the next session. The copies of process, etc., required to be filed in the federal court, are the process — corresponding to a summons — by which the jurisdiction is there made active. If a summons, in an action, is not served and returned into court, as required by law, jurisdiction for trial purposes is not obtained by the court. . If, in an appeal case, a transcript is not filed in the appellate court, or not filed within the time required hy statute, appellate jurisdiction can not attach. This for the reason that the transcript from the inferior court is the process by which the appellate court acquires jurisdiction. The act of" 1867 says, And the said copies being entered, as aforesaid, in said court of the United States, the court shall then proceed,” etc. The federal court can not proceed until the process (copies) are entered in that court. Entering the copies is essential to jurisdiction, because the equivalent of a summons. Until the required copies are entered in the federal court jurisdiction remains in the state court. It must be somewhere, and as it is not transferred to the federal court, it must be of necessity in the state court. Besides, the transfer of a case is a personal privilege that a party may waive. In my opinion, when he fails to comply with the plain jurisdictional requirements of the statute, he will be deemed to have waived his right of transfer.

In Insurance Co. v. Morse, 20 Wall. 445, Hunt, J., who delivered the opinion of a majority of the court, said: “ In a civil case he may submit his particular suit, by his own consent, to an arbitration or to the decision of a single judge; so he may omit to exercise his right to remove his suit to a federal tribunal as often as he thinks fit, in each recurring case. In these respects, any citizen may, no doubt, waive the right to which he may be entitled.”

II. Did the court err in ordering a nonsuit ?

The answer to this question depends upon the determination of two questions.

1. Whether Schloss had authority from plaintiff to make the purchase.

2. If he had not, did the subsequent ratification of the purchase, by plaintiff, have the effect to give validity to the transaction as against the attachment levy of defendant upon the goods made prior to the ratification?

The agency and authority of Schloss were conferred by a power of attorney, as follows:

“ Know all men by these presents : That I, Moses Pollock, of the city of Baltimore, in the State of Maryland, for divers good causes and considerations, me hereunto moving, have made, ordained, authorized, nominated, constituted and appointed, and. by these presents do make, ordain, authorize, nominate, constitute, and appoint Joseph A. Schloss, of Baltimore city, my true and lawful attorney, for me, and in my name, place, and stead to act for me, as my agent, to collect, a bill due me from Rudolph Bornstien, of Pomeroy, Ohio, and to receive notes, or to execute bill of sale, mortgage, or any way to settle the above bill, the total amount being $1,948.50, and to do all other lawful acts and things whatsoever concerning the premises, as fully and in every respect as I myself might or could do were I personally present at the doing thereof, and attorneys, one or more, under him, for the purposes aforesaid, to make, and again, at his pleasure, to revoke; hereby ratifying, allowing and confirming whatsoever my said attorney shall, in my name, lawfully do, or cause to be done, in and about the premises, by virtue of these presents.

In witness whereof, I have hereunto set my hand and seal, this 24th day May, a. d. 1867.

[seal] “ MOSES POLLOCK.”

The question on this instrument, in view of the action of the court below, is, was the authority conferred upon the agent general or special. The instrument conferring the authority is in writing, under seal, and contemplates the execution of a single act in Pomeroy, Ohio. The agent’s authority must be determined by the terms of the writing, and the nature of the business to be transacted, to be affected by any local usage or trade custom relating to such transactions at the place where the authority of the agent was to be exercised, should there be any such usage or custom. In this case no special ugagé or custom was shown to exist, that could in any way vary the terms of the written authority.

We think the agency of Schloss was special. He was authorized to collect a particular debt, amounting to $1,-948.50. The writing designated the-modes of collection to be executed, by receiving notes, bill of sale, or by mortgage. The general words, “ or any way to settle the above bill,” by the authorities on such questions, will be restricted in effect to mean authority to_ make settlement of the claim in any of the modes named in the instrument, and to the using of such other instrumentalities as the agent might find necessary to effect the collection in one of the ways specified, including, of course, a cash payment to him. Billings v. Morrow, 7 Cal. 171.

It is clear to us the authority conferred did not contemplate the purchase of a large stock of miscellaneous merchandise — the creation of a large debt against the principal; that the agent should execute his authority in such manner as to necessitate a loan of money to his principal, and thereby creating a debt against the constituent greater than the claim to be collected. “An agent having authority only to collect a debt, has no right to take a note for the amount of it from the debtor to himself, and thus substitute himself as creditor.” McCulloch v. McKee, 16 Penn. St. 289. In Powell’s Adm’r v. Henry, 27 Ala. 612, it was held: “ The delivery of an account to an agent, for the purpose of collecting it, confers no authority to settle it in any other mode; and if the agent exceeds his authority, although the principal may ratify the act, yet, to avoid it, he is -not obliged to give notice that he repudiates it.”

As Schloss had no authority to make the purchase, his doing so did not change the relation of creditor and debtor as between. Pollock and Bornstien. This is a necessary consequence of the rule, with few exceptions, that the authority conferred on the agent must be strictly pursued by him, or his acts are unauthorized, and therefore not binding upon his principal. White v. Cooper, 3 Penn. St. 130; Mathews v. Hamilton, 23 Ill. 470; Dunlap’s Paley’s Agency, 178.

The non binding effect of unauthorized acts of an agent, as between principal and agent, is considered and clearly declared in Rossetter v. Possetter, 8 Wend. 494, and also, in Taylor v. Robinson, 14 Cal. 396. It was substantially held that authority to an agent, in general terms, to collect or secure a claim of the principal, is not an 'authority to purchase for the principal the property of the debtor, to secure the claim. Such purchase is not the natural or usual means of seeming a debt. And general words in the power, must be construed in reference fo matters or modes specially mentioned. Had a purchase of the property of the debtor been contemplated by the principal, the transaction of the agent would not have needed to be ratified by the principal, he would have been bound without any such act. See also, Nixon v. Hyesot, 5 Johns, 58; Hoffman v. Adams, 7 Watts, 116.

These authorities, and there are many more of the same general effect, warrant us in holding that the authority conferred on Schloss, was special, that in making a purchase of the property, and creating an apparent indebtedness against his principal, he exceeded his authority — that the indebtedness created was his own rather than that of his principal — that by the purchase of the goods, title to them did not pass to the plaintiff’.

Plaintiff’ claims the case of Oliver v. Sterling & Ahrens, 20 Ohio St. 391, is in point, and decisive of this case. We think the eases are clearly distinguishable. The authority of the agent in that case, consisted of verbal instructions coupled with a letter addressed to the debtor. On the trial parol testimony was admitted to show the nature and extent of the agent’s authority, which, with the letter, was allowed to go to the jury. Upon the facts of that case there could be no legal objection to such a course. Story on Agency (7 ed.), § 82, says: “It may be laid down as a general rule, that where an express authority is conferred by informal instruments, such as letters of advice, or instructions, or loosely drawn orders, especially where they are general in their terms or confer a general authority, they are construed with more liberality than more formal and deliberate instruments.” In such case parol evidence may be used to show the full and particular instructions. Otherwise, “ where the agency is created and conferred by a written instrument, the nature and extent of the authority must be ascertained by the instrument itself, and can not be enlarged by parol evidence of intention to confer additional power; for this would be to contradict or to vary the terms of the written instrument.” Story on Agency, (7 ed.), § 76. See also, 1 Taunt. §§ 62, 63, p. 346.

In this case the power of the agent, as to the performance of his agency in Pomeroy, was wholly and exclusively conferred by the power of attorney. ITis authority could not be controled or varied by parol testimony. As it was conferred in writing, all questions under it, as to the agent’s authority, must be referred to the court-for determination. Hence, when the motion for non-suit was made, a material question for determination by the court was, the authority of the agent to make the purchase. That being determined adversely to the plaintiff, as we think properly, the plaintiff had no title to the property aud a non-suit was properly granted.

This would determine the case, but it is claimed the subsequent ratification of the acts of Schloss, by Pollock, had the effect to perfect the title in plaintiff.

The rule is, where an agent, in the transaction of the business, has exceeded his authority, and his principal, with a full knowledge of the-circumstances, deliberately ratifies the unauthorized acts of his agent, the ratification reaches back to the inception of the unauthorized acts, and the prihcipal is bound thereby. •

There are exceptions to this rule. If an innocent third person acquires rights, in good faith, in the property, after the commission of the unauthorized act, and before it has been sanctioned by the principal, the ratification will not operate retrospectively so as to defeat such intervening rights. 'Wharton on Agency and Agents, § 77, says: “But innocent strangers, with intervening vested rights, are not so precluded. These rights, so far as they accrued prior to his ratification, the principal can not touch ; so far as they are concerned, the ratification is utterly without effect.” The same doctriue is found in Story and Paley on Agency. Taylor v. Robinson, 14 Cal. 396; Wood v. McCain, 7 Ala. 800; Fiske et al. v. Holmes et al., 41 Maine, 441; Parmlee v. Simpson, 5 Wall. 81.

In this case, by the testimony, Schloss made the alleged purchase about the 27th of May, 1867. Cohen caused his attachment to be levied upon the goods about the 24th of June, 1867, and the attempted ratification did not take place earlier than July 5, 1867. So far as we can learn from the testimony, Cohen was creditor of R. Bornstien prior to the alleged purchase. By the levy of his attachment on the goods, before the ratification of the agent’s unauthorized purchase, he acquired a valid claim to and lien upon the attached goods, which Pollock’s ratification could in no way divest.

The court of common pleas did not err in entering up a judgment of nonsuit against the plaintiff.

Judgment affirmed.


source: Caselaw Access Project

author: Wright, J.

license: Public Domain

text:
    Boyd v. Bank of Toledo.
    Such conduct on the part of an indorsor toward the holder of negotiable paper, as is calculated to put a person of reasonable prudence off his guard, or to induce him'to omit demand or protest, or to give notice of dishonor, will dispense with the necessity of taking these steps.
    Error to the.District Court of Lucas county.
    The action below was against Boyd, accommodation indorser of a note which foil due Saturday, October 12, 1872. The note had been renewed, in bank, once or twice, and a 'new one was now prepared by the maker for Boyd to in-, dorse, as before, for the purposes of another renewal. On the day of maturity, Weil, one of the makers, took this new note to Boyd for his indorsement. Weil testified :
    “I asked Boyd to indorse renewal note; he said he wouldn’t do it; he said, at first, that I should see if I could get it at George Stebbins’, that he (Stebbins) should indorse it; then he said that he had to go out of town, and that if he (Stebbins) would not go on, he (Boyd) would attend to it next week, and that I should tell Mr. Griffith so. He said I should leave the note at the bank.- I went down then; first I looked for Stebbins, and couldn’t find him; then I went to the bank and, told Mr. Griffith what Boyd had told me — that if he should not be back in time, before the bank dosed that day, he would attend to it next week. Don’t think he mentioned any particular day. That is what he told me — I should leave it there. I guess it was on Saturday when the note was due. It was pretty near noon — a little before noon, when I went up there with the note, after I had been to see George-Stebbins; I couldn’t find Stebbins; it was Friday or Saturday morning that I saw Boyd; I can not tell any more than that it was one of those two days.”.
    On cross-examination, although, his memory was tested on the subject, he still insisted that Boyd’s directions wei-e “ to leave the note at the bank, and tell Griffith (the president) if he did n’t get back in time, he would attend to it next week.” This statement is repeatedly made.
    Mr. Griffith said:
    “Am president of the Merchants’ National Bank. The note for $2,000, dated August 10, and maturing October 12, was in the bank; we discounted it for Eldridge & Weil, and when it matured — on the day of maturity — on Saturday, October 12, Mr. Weil brought this note — it was for sixty days — and had been renewed several times before; he brought this and said Boyd was out of town and didn’t know that he would get back before Monday, and if he did n’t get back on Saturday, he would come in and arrange it, or attend to it, on Monday. We simply then attached the renewal note to the original note, waiting for Boyd to come in on Monday and indorse it. The same circumstance had happened once before. I believe a like circumstance of this kind occurred once before where it was renewed after maturity.
    “ Q. Renewed by Boyd after maturity ?

      “A. Yes, sir.
    ' “Q. On the same paper?
    “A. Yes, sir.

      “Q. You say Weil came in and told you that Mr. Boyd said he would be there and attend to it next week?

      “A. He said, if he did n’t get home in time on Saturday, he would come in on Monday and arrange it, or attend to it. That was the substance of it. I will not be positive about the word.”
    Mr. Griffith also said, that “ on Monday he went out to look up Boyd, and get the matter arranged, having just learned that the makei-s had failed. He said he met Boyd in the street, and told him what Weil had said, to which Boyd replied : ‘I will come in this afternoon, and arrange it.’ ” And again he said, that “ he told Boyd the new note was waiting at the bank to be indorsed, and that Boyd replied he would come in and attend to it. The note had been brought to the bank during bank hours of Saturday, and left there for Boyd’s indorsement.” Griffith further said, as to Boyd’s statements: “ He said he would come in and arrange it, or attend to it. He gave me to understand it would be all right. The. amount of his statement was, he would come in in the afternoon and fix it, or arrange it, or do something. That is what I say now. I do not recollect the precise words, but the impression left on my mind was that he would come in and arrange it in the afternoon.
    Wm. La.ugh.lin, father-in-law of one of the makers of the note, testified to statements of Boyd made about the time of the maturity of the paper. He said, that “ Boyd spoke of his going out of town, and that he had told Weil to leave the note at the bank; that Boyd said he had told Weil that he was going out of town, and for him (Weil) to have the.note at the bank, and he (Boyd) would call and fix it when he came back.”
    The note in suit was in the Merchants’ National Bank, for collection, on the day of its maturity, but was not protested, and plaintiff in error claims that there was no proper notice to him of dishonor, and that being indorser he was 'discharged.
    The bank claims, among other things, that the circumstances show a waiver of demand and notice by the indorser.
    The cause was submitted to the court, which found for the bank, in the amount of the note and interest. A motion for a new trial was overruled, a bill of exceptions was taken, and, on error, the district court affirmed the judgment of the common pleas ; whereupon a petition in error was filed in the supreme court.

      Kent, Newton & Pugsley, for plaintiff in error.

      Osborn & Swayne, for defendant in error.
   Wright, J.

The only question we propose to consider is, did the words and deeds of Boyd amount to a waiver of notice of dishonor ?

Parsons states the law on the subject thus: “Demand and notice may be waived by an act of the indorser, calculated to put the holder off his guard and prevent him from treating the note as he otherwise would have done.” 1 Parsons on Notes and Bills, 582.

The same author also says, page 592 : “ It wiil be seen that the general principle upon which most of these cases on the subject of waiver depends is, that the indorser has, by act or word, done something calculated to mislead the holder, and induce him to forego taking the usual steps to charge the indorser. The same principle would apply, in our opinion, when the declarations are made on the day of maturity. Thus, where the holder asked the indorser, on the day the note matured, if it would be best to call upon the makers, and the indorser replied that it would be of no use, a regular demand and notice were deemed waived. So a verbal request by the indorser to the holder not to protest the note was held to be a waiver of demand. "With reference to the question whether a particular conversation amounts to a waiver, no general rule can be laid down,’ except that the words used must be such as fairly to lead a reasonable man to suppose that the indorser did not wisli that the regular course in making a demand and giving notice should be pursued, or such as would be calculated to prevent him from so doing. But, on the other hand, the language must not he so vague, uncertain, or loose as to raise a reasonable doubt as to what was intended.”

On this subj'ect Edwards says, page 633 (Licit.): “ And any conduct on the part of the (drawer or) indorser calculated to, and actually inducing the holder to omit serving him with (a) regular notice, will have the same effect. Thus where it was proved that a few days before the bill became due the drawer called at the counting-house of the holder, and being asked the place of his residence, replied that he had no regular residence, that he was living among his friends, and would call and see if the bill was paid by the acceptor, this was held to dispense with notice, and threw upon the drawer the duty of inquiring whether the bill was met at maturity.”

In Lary v. Young, 8 Eng. (13 Ark.) 402, the head note reports: “A few days before it (the note) became due, the attorneys of the indorsee reminded the indorser it would soon be due, and that the maker had left the place. The indorser replied that he owed the note, that it was all right, that he had indorsed to pay it when it became due: his agent, who had notes and accounts in his hands for collection, would do so. Held, sufficient waiver of demand and notice.”

Daniels says : “ Any act, course of conduct, or language of the drawer or indorser calculated to induce the holder not 'to make demand or protest, or give notice, or to put him off his guard, or any agreement by the parties to that effect, will dispense with the necessity of taking these steps.” 2 Daniels Neg. Inst., § 1103, p. 130.

In Gove v. Vining, 7 Met. 212, the syllabus is: “A promissory note was made payable at either bank, in Boston, in four months from December 27, 1841, and was indorsed by the payee. On the 27th of April, 1842, the holder sent a messenger, with a note and written notice to the indorser, requesting payment, to the house in which the maker and indorser resided. The maker was absent, but the indorser read the notice and told the messenger that the maker would see the holder in a short time, and wished him not to sue the note until the maker should see him. No demand was afterward made on the maker, nor notice given to the indorser, lielcl, that the indorser had waived a legal demand and notice, and was answerable to the holder.” Shaw, J., in delivering the opinion, says: “And the court are of the opinion that when the indorser at, or shortly before the time when the note becomes due, says to the holder that an arrangement for its payment is about being made, and in direct terms, or by reasonable implication, requests the holder to wait and give time, it amounts to an assurance that the note will be paid, that the promisor or indorser will pay it, and is a waiver of demand and notice. It tends to put the holder off his guard, and induces him to forego making a demand at the proper time and place, and it would be contrary to good faith to set up such want of demand and notice, caused, perhaps, by such forbearance, as a ground of defense.”

Counsel for plaintiff in error cite Cayuga Bank v. Dill, 5 Hill, 403, and it must be admitted that the case is much like the one before us, but decided adversely to the views here advanced. Cowen, J., dissented, and Daniels says of the case: “ The court was divided, and the decision has been justly criticized and condemned.” 2 Daniels, § 1107. Parsons says: “ The opinion of Cowen, J., is clearly the better.” 1 Parsons, 592, note g.

The question to be determined is whether, upon a fair construction of Boyd’s conduct, it was calculated to mislead a reasonable person, to put him off his guard, and to induce him to forbear taking the necessary steps to charge the indorser. We think Weil fairly represented Boyd to- the bank, and these representations were affirmed to- be authentic on Mouday, when Boyd, upon being- told them by Griffith, answers that he will come and attend to it. This statement made to the bank, on Saturday, taken in eonnectiou with the leaving of the new note with the officers of the institution, fairly led them to believe that Boyd would do what he said. Had he kept his word, and indorsed the note on Monday, the necessity of notice and protest was waived.

One who leads another to act upon the faith of statements made, can not escape the consequences which a silence upon such statements has occasioned.

Judgment affirmed.


author: Scott, J.

text:
    Cox, Adm’r, etc., v. John.
    1. It is a well settled rule in equity, that a trustee is not permitted to so manage the subject of his trust, as to make profits or gain therefrom for himself. The beneficiaries in the trust have a right to expect and require the exercise of his best judgment, care, and diligence, on their behalf, and the gains resulting therefrom inure to their sole benefit.
    2. What such trustee may not do directly, he is not permitted to do through the intervention of an agent or attorney.
    3. 'An administrator can not, therefore, be allowed, directly, or through his attorney, to compromise, adjust, and settle claims against the estate for which he is acting, for less than their face, and to put the difference in his own pocket.

      i. And the rule is the same, whether the attorney, through whom such compromise and settlement is affected, acts for the administrator officially or personally; and whether he acts, in making such settlement, as the attorney of the administrator solely, or for him and others, with a view to their joint profit. What the administrator may not do singly, the policy of the law will not permit him to participate in doing. In either case the discounts obtained from creditors must inure to the benefit of the estate.
    5. Upon final settlement of an administrator’s accounts, it is not the duty of the probate judge to provide for the payment of claims against the estate which no creditor is asserting.
    6. Nor is it within the jurisdiction of the probate court, upon such final settlement, to determine the state of accounts between the administrator and the several distributees to whom any balance found in his hands may be payable. The court can only order distribution of such balance according to law, leaving the state of accounts between the parties to be inquired into when such order of distribution is sought to be enforced by the respective distributees.

      Error to the Court of Common Pleas, of Hamilton couuty. Reserved in the district court.
    The questions iu this case, arise upon the settlement of the final account of the plaintiff in error, as administrator of the estate of Squire J. John, in the Probate Court of Hamilton county. Numerous exceptions were filed to this account by defendants in error. The account, together with two partial accounts, previously filed by the administrator, and all the exceptions thereto, were referred by the court to Aaron R. Dutton, Esq., as a special master commissioner. The master subsequently made a full report touching all the accounts, appending thereto all the evidence taken before him on the hearing audinvestigation. Tothisreport exceptions were filed by both parties. The report shows that the claims of a large number of creditors of the estate, amounting in the aggregate to $21,000, or more, were purchased and paid for by one Richard Collins, a brother-in-law of the administrator, at an average cost of thirty-three and a third per cent, of the amount appearing to be due on them. Eor the full amount of these debts against the estate, the administrator, in his final account, claimed a credit. The master found that in the purchase of these claims, Collins was acting as the agent of the heirs of one George Cox, a deceased brother of the administrator, and that the administrator was indebted to them for the full amount of the debts so purchased, and allowed him a credit accordingly. The vouchers for the claims purchased by Collins, are numbered in the last account, 68 to 99, inclusive, also 106. To the allowance of these vouchers by the master, the defendants in error excepted. This exception was numbered 15, under article 1. The court, upon hearing, “ordered that said report and findings by said master commissioner Dutton, be confirmed, and all the exceptions overruled, excepting the fifteenth exception under article one, and the third exception under article two, filed by the heirs, as to which the court found error in said report, and ordered that the same be reversed in this, that the master has allowed said administrator credit in his account for the full amount of the claims specified in said fifteenth exception, whereas all the the said claims were compounded and purchased, at a great discount, by Richard H. Collins, as found in said master’s report, while retained and acting as attorney for said administrator, in settling said estate, and the compounding thereof, accrued to the benefit of said estate, and the administrator should have been allowed and credited in his account the sum or amount actually paid for said claims respectively, and no more.” The court then re-adjusted the accounts, crediting the amount paid by Collins for said claims, aud no more, and bringing the administrator in debt to the estate in the sum of $6,629.81, on October 26, 1866, and then ordered the administrator to distribute to the widow and children, said sum with interest.
    • From this order and judgment the administrator appealed.
    At the June term, 1870, of the common pleas, a like order and judgment was entered. It sustains the exception to article one, of the exceptions of the heirs to the master’s report, by ordering “ that the report and findings of said master commissioner are erroneous in this, that the master has allowed said administrator credit for the full amount of the claims against said estate, specified in the fifteenth exception, article one, filed by said heirs of S. J. John, whereas, by law, said administrator was entitled to credit in his accounts for the sum or amount actually paid for the said claims respectively, and for no more; the court finding that the said claims were compounded and purchased by Richard II. Collins, while l’etained and acting as attorney for the said administrator in the settlement of said estate, and at a great discount, as found in said master’s report, and that said discount must be held to inure to the benefit of said estate.” The court then re-adjust the account, and find the administrator in debt to the estate in a balance of $6,629.91, with interest, thereon from Oct. 26, 1866, which balance of $6,629,91, with interest as aforesaid, the said administrator is ordered to distribute and pay to the widow arid children of the said Squire J. John, according to their respective shares in law.
    The court then ordered, “that the master’s report, after being thus corrected, be and hereby is confirmed.”
    To all the findings, rulings, and judgment of the court, Edward Cox the administrator excepted — and moved the court for a new trial, but the court overruled the motion, to which he also excepted.
    lie then-presented a bill of exceptions containing all the testimony in the ease, accounts and vouchers, etc., in evidence on the hearing and trial, which was approved, signed and sealed, and made part of the record.
    The case was taken to the district court by petition in error.
    The district court reserved the cause and all questions arising in the same, to the supreme court.
    The material facts shown by the testimony, and other parts of the record, are stated in the opinion of the court.'

      C. D. Coffin, with Charles. L. Mitchell, for plaintiff in error:
    As to the relation of attorney and client, in regard to purchases by the attorney for his client. 18 Ves. 313; Holman v. Loynes, 4 De Gex. M. & G. 281; Edmons v. Meyrick, 2 Hare, 60. And as to his disability to purchase. Exparte Lacey, 6 Ves. 626; Crane v. Allen, 2 Dow. 289; Naylor v. Winch, 1 Simon & Stewart, 555; Farnam v. Brooks, 9 Pick. 232. As to what must be' done before the client can claim the purchase. Galbreath v. Elder, 8 Watt. 95; Wade v. Pettibone, 11 Ohio, 57, 60, 61; Downey v. Garrard, 3 Grant’s Cases, 64; Henry v. Raimer, 25 Penn. St. 354; Clevinger v. Raiman, 3 S. & W. 486, 493; Smith v. Brotherton, 32 Penn. St. 461, 469. On the relation of an attorney of an administrator to the widow and children of the decedent, see Salladi’s appeal, 36 Penn. St. 12 (12 Casey), 429.

      Rufus King, and Lawrence Maxwell, Jr., for the widow and heirs:

      I. It is well settled that an administrator can not buy claims at a discount, for his own benefit. A trustee’s entire services are due to his trust.
    Nor can he be jointly interested with others in such purchase. Mitchum’s Heirs v. Mitchum’s Adm’rs, 3 Dana (Ky.), 260, 265, 266; Brackenridge v. Holland, 2 Blackf. (Ind.), 377; Fulton v. Whitney (N. Y. C. A.), 2 Law and Eq. 713.
    Nor agree to accept a benefit from the purchaser. Bailey v. Watkins, Sudgen Law of Property, 726.
    These rules of equity are epitomized in our statute. S. & C. 598, § 163.
    The evidence proves conclusively that Collins’ purchases were made on behalf of the administrator. Whether it was wholly or in part with money lent to the administrator by others is immaterial.
    And it is also immaterial, under the authorities cited, whether the purchases were for the administrator’s sole benefit, or whether he was only jointly interested therein with Collins and the heirs of Geo. Cox, or to what extent he was interested.
    II. But even if it were true, as claimed by the administrator, that he had no interest whatever in the purchase of these claims; but that it was the other heirs of George Cox, acting solely on their own account, and for their own benefit, who bought them, the discount must nevertheless inure to the estate.
    1. Because they bought through the illegal agency of the attorney and administrator of the estate.
    2. Because one of those heirs was the wife of the attorney of the estate, and all of them were the brothers and sisters of the administrator.
    1. The attorney of an estate can no more buy claims than the administrator. Ex parte James, 8 Ves. 346; Wade v. Pettibone, 11 Ohio, 57-59; Stockton v. Ford, 11 How. (U. S.), 232, 247; Story on Agency, § 211; Reed v. Norris, 2 Myl. & Craig, 374.
    And what neither can do for himself, he can not do as agent for others, because as agent for others he would have the same conflicting interest with his duties to the estate, as if acting for himself; at least, the distinction between the degree of interest he would have in the different cases is “ to thin to form a safe rule of justice.” Fx parte Bennett, 10 Ves. 399, 381, 382, 384, 393-400; Hawley v. Cramer, 4 Cowen, 718-735; Reed v. Warner, 5 Paige, 650-656; Piatt v. Longworth, 27 Ohio St. 159.
    The administrator certainly participated in the negotiations for the purchase of these debts. If he were not acting as principal, the only alternative is that he was acting as agent for the heirs of George Cox.
    Collins’ employment to collect debts was sufficient to constitute him attorney for the estate. It was not necessary that he should have been employed to bring or defend suits. In the matter of Aitkin, 4 B. & Aid. 47.
    But he also acted as counselor, and gave advice as to closing the estate. His bill for $1,200 includes “ advice generally.”
    2. The rule, which prohibits an administrator or attorney from being interested in the purchase of claims against the estate, is equally applicable to a purchase by the wife, or the brothers and sisters of either. Devoue v. Fanning, 2 Johns, ch. 252; Riddle v. Boll, 24 Ohio St. 572; Piatt v. Longworth, 27 Ohio St. 160; Mitchum’s Heirs v. Mitchum’s Adm’rs, 3 Dana (Ky.), 266; Dundas’ Appeals, 64 Penn. St. 325-332.
    III. As to the balance alleged to be due to the estate of George Cox, it is to be observed that no such claim is, or, so far as the testimony shows, ever has been, set up by his administrator. It was brought forward, collaterally, by Edward Cox, the administrator of John. It was sought to obtain credit on his account for it, but it was overruled by the master, expressly on the ground that it was not receipted for, nor transferred nor assigned by the administrator of George Cox to E. Cox, the administrator of John. On his own showing, therefore, the master was unwarranted in proceeding to say that it is still a debt of John’s estate to that of George Cox.

      The authority of the probate court is limited to auditing the administrator’s accounts. (1 S. & C. 599, § 168.) It has no jurisdiction to adjudicate upon alleged debts of the estate.
    Nor was any such jurisdiction invoked by the administrator of George Cox. There is no evidence or pretense that he authorized or presented any claim against John’s estate. Indeed, upon the evidence, it is clear that the administrator of John has been credited in his accounts with the payment of all claims ever held by George Cox against John.
    IY. The probate court, whose jurisdiction “to settle the accounts of executors and administrators, and to order the distribution of estates” (S. & C. 1212, § 2), was alone invoked below, had no power, in this proceeding, to investigate or determine the alleged indebtedness of Mrs. John to the administrator.
    The only order the court had power to make, was a general direction to distribute the funds remaining in his hands according to law. Swearingen v. Morris, 14 Ohio St. 432; McLaughlin v. McLaughlin, 4 Ohio St. 511.
    This record does not disclose, because the probate court had no jurisdiction in the case to investigate, the true inwardness of the alleged transaction between the widow and the administrator, by which it is now falsely pretended that the stock was turned over to her and retransferred to him as her agent.
    If she incurred a liability to the administrator, which is still outstanding, he can enforce it by an action, or by way of set off, when she sues to recover upon the order of distribution. (S. & C. 620, § 4.)
   Scott, J.

The controversy in this case is now limited to the findings and rulings of the court below, on the exceptions taken to the report of the master in relation to the final account of the plaintiff’ in error, as administrator of the estate of S. J. John. The main question in' the case is, Did the court below err, to the prejudice of plaintiff in error, in finding, from the vouchers and testimony in the case, and from the facts found by the master, that the claims against the estate, which were purchased for about one-third of their nominal amount, “ were so compounded and purchased by Richard IT. Collins, while retained and acting as attorney for said administrator, in the settlement of said estate;” and in holding that, “bylaw, said administrator was entitled to credit in his accounts for the sum or amount actually paid for the said claims respectively, and for no more ? ” And was the final order and judgment, made in accordance with such finding, erroneous ?

These questions present mainly, if not solely, an issue of fact. For we do not understand that there is any substantial disagreement between counsel, as to the law governing this main subject of contest. "We do not understand counsel as questioning the soundness of the rule, well settled in equity, that á trustee is not permitted to manage the subject of his trust so as to make profits or gain therefrom for himself. The beneficiaries in the trust have a right to' expect and require the exercise of his best judgment, care, and diligence on their behalf, and the gains resulting therefrom inure to their sole benefit. An administrator can not, therefore, be allowed to compromise, adjust, and settle claims agaiust the estate for which he is acting, for less than their face, and put the difference in his own- pocket. And it is equally clear, that what he can not do directly, he will not be allowed to do through his attorney or agent. The maxim, “ qui facit per alium, facit per se,” is, at least, as efficacious and forcible in equity, as at law.

If, in purchasing or satisfying these claims, Collins was retained by, and was acting as attorney for, the administrator, we think it immaterial whether, as between themselves, it was understood that he was retained by the administrator personally or officially. In either case, so long as the trust continues, such purchase is the act of the trustee, and must inure to the benefit of the cestuis que trust, and not of the administrator personally. Nor does it make any difference whether, in this business, Collins was employed solely by the administrator, or by him and others, with a view to their joint profit, For, what he may not do singly, the policy of the law will not permit him to participate in doing. In matters pertaining to his trust, he must be the servant solely of the beneficiaries. These principles are so well settled as to require no citation of authorities in their support. Nor do we understand them to be drawn directly in question by the able counsel who represent the plaintiff in error.

The main question, then, is one of fact: Was Richard Collins, in the purchase or adjustment of the claims in question, acting as the agent or attorney of the plaintiff in error, or was he acting solely for others ?

The following facts, bearing more or less directly on this question, appear from the record :

Circumstances, which to a great extent were beyond the control of the plaintiff in error, have rendered his admin-' istration of the estate of S. J. John an unfortunate one for himself. The assets of the estate were not administered according to law. A large portion of them, amounting at the appraisement to some $47,000, or more, were, by an arrangement deemed prudent at the time, taken by the widow at the appraisement, for which he took her note without security. She turned this property over to him to be disposed of otherwise than by public sale. He was liable for its appraised value, and lost largely by the operation.

His brother, George Cox, was one of the sureties on his administration bond. Before the purchase of the claims in controversy, George Cox died intestate, leaving considerable property. His brothers and sisters were his heirs ; of whom Edward Cox, the plaintiff in error, was one, and the wife of Richard Collins was another, There were several other brothers and sisters, and the testimony tends to show that they were apprehensive of a liability devolving on them in consequence of the suretyship of their brother, George, for the faithful administration of the John estate; and that all the heirs of George Cox, including Edward Cox, the present plaintiff, allowed and authorized Collins to use, for the purchase of the claims in dispute, moneys which came to his hands from the estate of George Cox, and which were the joint property of his heirs.

In the administrator’s account, the disputed claims are all stated in the names of the original creditors, and not as payments made to Collins, as their assignee.

The record also shows clearly that, for several years prior to the settlement of these claims with the creditors, Collins had been acting as the attorney of plaintiff in error, in endeavoring to collect and adjust doubtful claims in favor of the John estate, and in defending his partial settlement accounts against exceptions taken thereto by the widow and heirs, and regarded himself as general advisory counsel for the administrator. Among the last vouchers in the administration account, is a receipted account of Collins for $1,200, as fees “ for his efforts to collect or compromise bad debts, defending ads. widow and heirs, and advice generally.”

When Collins first commenced getting in claims of creditors, the business was transacted in the name of the adminstrator, and receipts were taken as for payments made by him. Subsequently, the formal mode of operation was so far changed, as to substitute for a receipt a transfer of the claim of the creditor, without recourse.

The claim of one creditor was adjusted by Collins, by an agreement which seems to have contemplated and provided for the conveyance to the creditor of certain real estate, of which John died seized. This arrangement seems to have been carried out without objection by the administrator.

There is much testimony in the case, both by creditors and attorneys for creditors, with whom settlements were made by Collins, tending to prove that, in many cases, favorable terms of settlement and large discounts were obtained from creditors, by the representations of Collins that the John estate was insolvent, and that he was acting in the premises on behalf and in the interest of the administrator, the widow, and the heirs of S. J. John.

It) one case, an attorney representing a creditor’s claim, wrote to-the administrator, demanding payment. In response to this letter, he was, shortly afterward, visited by Collins, on whose representations a very favorable settlement and large discount from the face of the claim were obtained from the attorney acting for his client.

It is true Collins testifies: “ I did not act as the attorney of the administrator in the purchase of these claims, but as the agent and attorney of the heirs of George Cox, using their money for that purpose.” But, it must be remembered that the administrator himself was one of those heirs. Indeed, he was the one most deeply interested in the settlement of John’s estate. Iiis liability was primary ; that of the other heirs of George Cox was only secondary.

And as to the means, by the use of which Mr. Collins was enabled to satisfy and extinguish the claims of creditors, he himself testifies that he had, in his hands, more than $15,000 of their money, all of which he !£ was authorized by them, and directed to use, if necessary, in purchasing the outstanding claims against S. J. John’s estate.” This money was mainly the proceeds of two farms and certain city property sold by him as the agent and attorney of the heirs of George Cox. The claims, then, were bought and paid for with money belonging jointly to Edward Cox and his surviving brothers and sisters; in which each had an equal interest. And if, in the purchase of the claims, Collius was acting as the agent of the heirs of George Cox, then Edward Cox was one of his principals, and contributed an equal share toward furnishing the means for that purpose.

These facts, testified to by Mr. Collins, who was not an unwilling witness for the administrator, negative the finding of the master, that Edward Cox contributed no part of the means with which the claims in question were purchased.

It is also shown, by the record, that the power of attorney whereby Collins was authorized to act for the heirs of George Cox, in renting, leasing, and selling their real

4 estate;' and the agreement by which his fees for services were fixed, were both executed by Edward Cox as well as by his brothers and sisters.

We think the evidence in the case fully justifies the finding, thait Richard Collins, in the purchase of these claims, was acting as the attorney or agent of the plaintiff in error. And though others may have united with the administrator, in authorizing these- purchases for his benefit, they must inure to the benefit of the estate'of S. J. John.

Whether the same conclusion of law would not result from the relations which Collins, the purchaser, sustained toward the estate of John, we have not thought it necesto determine.

In addition to this main subject of controversy, it is claimed, by plaintiff'in error, that the court below erred in not directing payment, before distribution, of a sum which, it was claimed, was found, by the master’s report, to be due from the estate of S. J. John to the estate of George Cox; and also in ordering distribution to be made to the widow of Mr. John, with the children, when she was indebted to the administrator upon the note which he took from her for the stock of furniture at the valuation made by the appraisers.

The master, in his report, credits the administrator with the payment of a portion of a claim in favor of the estate of George Cox, against the estate of S. J. John. He refused to credit him with the residue of the claim, on the ground that there was no voucher for its payment, and it had not been transferred to him. And he incidentally adds, as a deduction, that the residue of the claim is still a debt of John’s estate to that of George Cox. But it was not the duty of the master,-nor was it-within his province, to determine the validity of unpaid claims against the estate of John. Nor had the probate court jurisdiction to determine controversies between alleged creditors and the administrator. And, if it had, the exercise of such jurisdiction does not appear to have been invoked by the administrator of the estate of George Cox. We think it is no part of the duty of a probate court, upon final settlement of tbe administration account, to provide, by its final order and judgment, for the payment of claims which no creditor is asserting.

Nor had the probate court jurisdiction, on settlement of the administrator’s account, to inquire whether Mrs. John, or any other distributee of the estate, was indebted to the administrator, or to ascertain the amount of such indebtedness, and provide for its payment in whole or in part.

The settlement made by and before the probate court, had relation only to accounts between the administrator and the estate; and not to the state of accounts between him and the several distributees.

If the probate court found a balance in the hands of the administrator, it could only order its distribution according to law. When the widow shall seek to enforce such order of distribution, by proceedings in the probate court, or by action in the court of common pleas, it will, doubtless, be competent for the administrator to set off’ against her claim such liquidated demands as he may hold against her.

We think the judgment of the court of common pleas must be affirmed.

Wright, J., dissented from the judgment.