author: Williams, J.

text:
    William G. Julier et al. v. Jane Julier. Anna Julier et al. v. Jane Julier.

      Dower right of divorced wife — Section 5699 Rev. Siat. — Decree for alimony under agreement of wife to release dower — Operates as such release as if deed for same were executed and delivered —■ Wife after such release estopped to set up right of dower — Jurisdiction of court in divorce — Client who accepts fruits of judgment cannot plead ignorance of its provisions, when.

    1. Section 5699 of the Revised Statutes, which gives a right of dower to a divorced wife in the lands of the husband in certain cases, is enabling in its character, and does not create a disability, nor impose any restraint on the power of the wife to relinquish such dower, in any lawful mode, when the divorce is granted, or at any time thereafter.
    2. When, upon granting a divorce, a decree for alimony rendered, by a court having jurisdiction, in pursuance of an agreement be-, tween the parties,’ orders the wife to execute a release of her right of dower in lands of the husband, the decree, if the wife fails to perform the same, will operate as such release, and be as effectual as a bar to her right of dower as if the deed were duly executed and delivered.
    3. In an action for divorce, properly instituted, where the petition contains a prayer for general relief, the court has jurisdiction to adjust and settle the rights of the parties with respect to the nature and amount of the alimony that shall be awarded, and the terms 'and conditions of its payment, and in doing so, to confirm any agreement of the parties concerning the same that appears to be just and reasonable, and render a decree in conformity therewith.
    4. While a decree so rendered in conformity with such agreement remains in force, the parties are estopped to allege or prove that the agreement was void as against public policy.
    3. When by such decree the wife is awarded alimony, and ordered to execute a release of her dower right in lands of her husband, which she fails to do, but after receiving the alimony awarded her sues for dower in such lands, the decree constitutes a legal bar to the action; and it is not necessary to allege or prove the agreement in order to establish that defense.

      6. A client who has accepted and retains the fruits of a judgment taken by his attorney of record cannot, as against the defendant therein, in the absence of fraud or collusion, plead ignorance of its provisions, nor dispute the authority of his attorney to have it so entered.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Cuyahoga county.
    In February, 1897, Jane Julier, the defendant in error, commenced an action against the parties who are the present plaintiffs in error, for the assignment of dower in certain real property situated in the city of Cleveland. The petition alleges, in substance, that the plaintiff was married to George C. Julier in 1856, and obtained a divorce from him for his aggression, in 1S88; that during the coverture he was the owner of the real property described, and he died seized of the same in 1896; and, that the estate of the decedent is held by the defendants, of whom she demanded her dower before the commencement of the action. The answer pleads in bar of the claim for dower, the judgment in the divorce case, by which, in pursuance of an agreement made between the husband and wife with respect to her alimony, it was adjudged and decreed that the plaintiff, within ten days after the entry of the judgment, should execute and deliver to the defendant a quit-claim deed releasing her dower and all other interests in all real estate that was then or might thereafter be owned by the husband, and in default of such conveyance the decree should so operate, and by which the plaintiff was enjoined from setting up any claim to such real estate, except in so far as the alimony allowed her was made a lien thereon. The reply admits the decree was entered in the divorce case as alleged in the answer, and the payment of the alimony thereunder in all respects as adjudged, but alleges, that the part of the decree which relates to the release of the plaintiff’s dower is void for want of jurisdiction, and was entered without her knowledge or consent.
    In the common pleas the defense was sustained and the petition dismissed. On the trial in the circuit court, to which the cause was appealed, the defendants, against their objections, were required to take the burden of proving the agreement mentioned in the decree for alimony; and the testimony was at first directed to proving a verbal agreement, in regard to the terms of which there was some conflict, but finally a written contract was discovered and produced, which was conceded to be the agreement made by the parties. That agreement, as found by the court, is as follows:
    “It is agreed by way of a compromise as to the amount of alimony to be paid by George C. Julier to his wife, Jane Julier, that she proceed without unreasonable delay to file her petition for divorce and alimony against the said George C. for cause of adultery of late occurrence; and upon granting the decree of divorce by the court for the cause aforesaid, the said George O. shall pay or cause to be paid in a reasonable time, in installments, the sum of twelve thousand three hundred dollars to the said Jane; said installments to draw interest from and after ten days from the date of the decree of divorce and alimony, and the journal entry therein to contain a clause in the alternative that she shall by quit claim deed release all her right of dower and contingent right of dower to and in any and all real estate wheresoever situated, owned and held by said George 0., and in default of the execution and delivery of said deed or deeds to said George 0. the decree so made shall cut off all her said dower therein forever. The personal property of said George O. now in house No. 1200 Willson avenue shall by these presents pass to and vest in said Jane as alimony in addition to the above sum and thereby become her property. Said alimony shall be paid in the following installments, viz: One thousand dollars within ten days of the filing of the petition for divorce by said Jane on the grounds aforesaid, and two thousand dollars within ten days after the decree of divorce is granted by the court, no interest to be paid on either of the aforesaid installments; and $1,000 in six months after decree, $2,075.00 in eighteen months, $2,-075.00 in one year after, $2,075.00 in one year after, and $2,0^5.00 in one year after, from the date of the decree of divorce in said action, said last named sums to draw interest quarterly from the date of decree. Said George O. Julier has the option of paying any or all of said last named installments at any time before any of them shall become due, and if he does pay any or all before they fall due interest thereon to be counted to day of payment only. Jane to pay all the debts of her contracting since the separation of parties in August, 1887.
    “Jane Julier,
    “By her Attorney, W. O. Ong.
    George O. Julier,
    “By J. H. McMath, his Attorney.”
    The decree in the divorce case is as follows:
    “This cause came on for hearing on the petition and testimony, and was argued by counsel; on consideration whereof the court finds that the plaintiff, at the time of the filing of her petition, had been a resident of the State of Ohio for one year next preceding the same, and was, at the time, a bona fide resident of Cuyahoga county, in said state; that the cause of plaintiff set forth in the petition arose or took place in said county, and the court finds that due notice of filing and pendency of the plaintiff’s petition was given to the said defendant according to law, and that the parties hereto were married as in said petition set forth; that the said defendant has been guilty of adultery as set forth in said petition, and that by reason thereof plaintiff is entitled to a divorce from said defendant as prayed for. It is therefore ordered, adjudged and decreed by the court that the marriage relation heretofore existing between the said Jane Julier and George C. Julier be, and the same hereby is, dissolved, and both parties, are released from the obligations of the same. And in consideration of the agreement of the parties as to-alimony it is further-ordered, adjudged and decreed that the defendant do pay the said plaintiff as and for her reasonable alimony in money the sum of $8,300, payable in the following installments with interest payable quarterly from the date of this decree, viz.: $2,075 on or before the 20th day of August, A. D. 1889; $2,075 on or before the 20th day of August, A. D. 1890; $2,075 on or before the 20th day of August, A. D. 1891, and $2,075 on the 20th day of August, A. D. 1892, and on payment of any one of the aforesaid installments before the same becomes, due, the interest aforesaid on the said sum so paid shall then cease.
    ■ “It is further ordered, adjudged and decreed that the foregoing sum of money to be paid as decreed, to-be a charge on, and shall operate and be a first lien on the real estate of said defendant, situated in said county of Cuyahoga and state aforesaid, until said sums of money and interest are severally paid to said, plaintiff. And it is further ordered, adjudged and decreed that said plaintiff shall, within ten days, execute- and deliver to said defendant her deed and quit claim and release of dower to and in all the real estate of said defendant wheresoever situated, and in default thereof by her, it is ordered and decreed that she be forever divested of all and every claim, title or interest by dower or otherwise in or to any real estate-now owned by said defendant wheresoever situated, or in real estate thereafter acquired by the defendant,, and the decree of the court herein shall operate as such conveyance by quit claim of real estate by said plaintiff to said defendant, and the plaintiff is enjoined from interfering in any manner with the defendant’s rights, and from setting up any claim of interest in defendant’s real estate wheresoever situated. And it is further ordered, adjudged and decreed that the defendant fee forever divested of all and every claim, title or interest by courtesy or dower, or otherwise, in or to any of the real estate of the said plaintiff wheresoever situated, now owned by said plaintiff or may be hereafter acquired by said plaintiff, and the defendant is enjoined from interfering in any manner with the plaintiff’s real estate wheresoever situated. It is further considered by the court that the said Jane Julier recover from the said George 0. Julier her costs herein expended, taxed at $..... And execution is awarded for the collection. The plaintiff’s costs in this case are taxed at $17.11.”
    The petition for divorce contained a prayer for general relief.
    George 0. Julier was afterwards married to Anna, who survives him, and is one of the plaintiffs in error, and two children born of that marriage, William G. and Ruth, who are minors represented by guardian, are the other plaintiffs in error.
    The court made a finding of facts which, in so far as they are deemed material, are, in addition to those already stated, as follows:
    “That the said George 0. Julier paid the plaintiff $1,000.00 in cash immediately after the execution of the said contract, and, suit having been thereupon instituted by her for divorce and alimony, further paid her, before the disposition of said suit, the sum of $3,000.00 in cash; that after the said decree of divorce was entered, he paid her the further sum of $8,300.00 with interest, and also transferred to her certain articles of personal property of the value of $300.00; that the plaintiff had no knowledge that the attorney so acting for her in the said divorce case had attempted by the contract aforesaid to obligate her to release her dower claims in the real estate of her said husband, and that she at no time agreed to release or convey the same; that thereafter the said divorce case having come on to be heard, a decree was entered therein, a copy of which is attached to the answers of the defendants in this case, to which reference is here made; that the portions of said decree providing that the plaintiff should execute a quit claim deed to the said George C. Julier within ten days from the date thereof, and all parts thereof concerning said dower right were entered in said decree, in pursuance of said contract, with the knowledge of her attorney, but without the knowledge or assent of the plaintiff, Jane Julier, and her attorney was without authority from her to release her dower, or to contract in regard to the same.”
    The court held as its conclusions of law, “that the plaintiff is not estopped to assert her right of dower in the premises described in her petition herein; that she has not conveyed or released such dower estate; that the contract so entered into prior to the commencement of the plaintiff’s said action for divorce was against public policy, and was and is illegal and void; that the plaintiff was not bound by reason of the execution of the said contract, and the performance thereof by the said George 0. Julier to convey or release her said dower estate; that the judgment and decree entered by the said court of common pleas in- the said action for divorce, so far as the same directed the execution and delivery of a quit claim deed by the said plaintiff of her dower rights in the said premises, and so far as it provides that it should of itself operate as a conveyance of such dower rights, and so far as it undertook to enjoin the plaintiff from thereafter asserting her rights in the said premises, was null and void.”
    Thereupon judgment was rendered for the plaintiff, to reverse which the petition in error in the first of these cases, was filed in this court.
    The errors assigned in the other case are such only as occurred in the proceedings for the assignment of the dower subsequent to the foregoing judgment, which, in the view we have taken of the first case, become unimportant.

      Johnson cG Hackney, for plaintiffs in error.
    A judgment of the kind and character of this, imports absolute verity. Black on Judgments, 276.
    A judgment is “the very voyce of law and right.” Co, Litt., 39 A.
    A judgment is the decision or sentence of the law. Bouvier’s Law Dict.j 3 Blk. Com., 395; Blood v. Bates, 31 Vermont, 150.
    A judgment is an adjudication of the rights of the parties in respect to the claim involved. McNulty v. Hurd, 72 N. Y., 521; N. Y. Code, Sec. 245; Kansas Code, Sec. 395; Cal. Code, Sec. 577; Freeman on Judgments, Sec. 14.
    A decree is prima facie valid and must stand until overthrown, and acquiescence for seven or eight years bars the right to question the same. Zollner v. Zollner, 46 Mich., 511; Bigelow on Estoppel, 4th Ed., 447, 592, 596, 651, 662 and 663.
    A judgment rendered where the court obtains jurisdiction of the person as was done in the divorce proceedings in the court below, cannot be impeached or overturned otherwise than by a direct proceeding instituted for that purpose, no matter how irregular or defective. Larimer v. Knoyle, 43 Kansas, 345.
    There can be no re-hearing of a decree had by consent of counsel although rendered without the parties’ consent. 1 Vol. Am. Ency. Law, note 1, p. 955.
    We assert without fear of successful contradiction that Jane Julier in this action cannot attack the judgment in the divorce proceedings, because when a court of general jurisdiction exercises its powers upon a state of facts, the proof is presumed to have been made, and the existence of the facts cannot be collaterally attacked. Pillburry v. Dugan, 90 Ill., 117; Maxsom v. Sawyer, 12 Ohio, 195.
    The decrees of a court of competent jurisdiction will be presumed to have been made on proof of the facts sufficient to authorize the exercise of jurisdiction as against a collateral attack. Adams v. Jeffries, 12 Ohio, 253; Glover v. Ruffin, 6 Ohio, 255; Smith v. Pratt, 13 Ohio, 548.
    Where judgment is obtained by a party, and such party accepts of its provisions, though not coming strictly within the thing adjudged, nevertheless the party acquiescing therein cannot thereafter question or attack any of its provisions. That is this case exactly. Canal Bank v. Lizaida, 20 La., 285; Richardson v. Simmons, 47 Mo., 20; Feigh’s Estate, 22 N. Y. State, 542; Fox v. Althorp, 40 Ohio St., 322.
    One who has accepted the benefits of a void decree is estopped to deny its validity. Ellis v. Wheat., 61 Iowa, 644; Elliott v. Wholfrom, 55 Cala., 384; Bailey v. Bailey, 44 Pa. St., 274; Prater v. Prater, 87 Tenn., 88; Brown v. Simpson, 9 B. Monroe, 454.
    In equity, any provision in lieu of dower, if accepted by the widow, bars such. Jordan v. Clark, 81 Ill., 465; McGee v. McGee, 91 Ill., 548.
    The conveyance of an estate in lieu of dower, bars grantee’s claim to dower after death. Loud v. Loud, 129 Mass., 14; Logan v. Phillips, 18 Mo., 28; Grogan v. Garrison, 27 Ohio St., 64; Spangler v. Dukes, 39 Ohio St., 649; 4189 R. S.
    If the court had jurisdiction of the subject matter and the parties, its judgment, however irregular or erroneous, is binding until reversed, and errors are not available on collateral attack. Biglow v. Biglow, 4 Ohio, 138; Buell v. Cross, 4 Ohio, 337; Douglass v. McCay, 5 Ohio, 522; Foster v. Duncan, 8 Ohio, 87; Boswell v. Sharp, 15 Ohio, 447; Paine v. Monland, 15 Ohio, 435; Douglass v. Massie, 16 Ohio, 271; Cochran v. Laring, 17 Ohio, 409; Newman v. Cincinnati, 18 Ohio, 323; Reynolds v. Stantbury, 20 Ohio, 344; Fowler v. Whitman, 2 Ohio St., 270; Moore v. Robinson, 6 Ohio St., 302; Trimble v. Longworth, 13 Ohio St., 431; Hammond v. Davenport, 16 Ohio St., 177; Calkins v. Johnson, 20 Ohio St., 539.
    A judgment cannot be collaterally impeached though founded on a void contract.
    And yet, without attacking this judgment, neither in the ansAver nor by cross-petition for the void contract upon which it Avas procured, and after the evidence Avas all in, showing the consideration paid under it to Jane Julier by George O. Julier in lieu of her said dowrnr, the circuit court, by its decree, provides for paying her therefor a second time. Surely its judgment in this matter must be held erroneous. And if she had properly raised the question by original bill or by cross bill, she must tender back Avhat she received for her doAver. Bank v. Stevens, 6 Ohio St., 262.
    Besides all this, this decree has been of record since February, 1887, and it Avould be dangerous to" permit her to take under that decree and abide the same without objection all these years, and after his death, noAV seek to enforce payment for her doAver a second time. Kirby v. Harrison, 2 Ohio St., 335; Parmlee v. Adolph, 28 Ohio St., 18.
    This Avas possible at any time before the $8,300.00 and interest Avas paid or since by refunding that money.
    It won’t do for Jane Julier, Avith her late husband’s money for dower in her pocket, to say that she did not know of the provisions of that decree. Wade on the Laws of Notice, section 11, page 9.
    Applying this rule to Jane Julier, she cannot, through her attorney, in case wliere she is the plaintiff, procure a decree to be entered as she did, and then be permitted to say, that a part of that decree was made without her knowledge and authority, and therefore void. Hinton v. McNeil, 5 Ohio, 509.
    The judgment was of her own seeking, and was in every sense adversary. Rammelsberg v. Mitchell, 29 Ohio St., 22.
    The judgment conclusively settles her right to dower in this case. She is barred by that judgment as upon a former adjudication, and no evidence was proper the object of which was to invalidate the force and effect of that judgment, for the simple reason that it was in the nature of a collateral attack upon the former proceedings. 2d Vol. of Van Fleet’s Adjudication, pp. 856 and 857.
    By the allegations in that petition, and the default of the defendant an issue was joined. Hixon v. Ogg, 53 Ohio St., 361.
    Relying on that decree and this law, George C. Julier paid his former wife $12,300.00 in lieu of her dower in this land, and made improvements thereon, and paid out in cash therefor more than $24,000.00 as before stated. Spangler v. Dukes, 39 Ohio St., 649.
    Another argument urged against this agreement being made to operate as a bar to dower is, that dower being real estate, can only be transferred by the legal mode of conveyance. This is not a tenable position. A man may divest himself of an estate which lies in action only, by doing such acts and making such agreements as operate to bar his action, though no conveyance be executed. Shotwell v. Sedam's Heirs, 3 Ohio, 13; Nelson on Divorce and Separaration, Vol. 2, Sec. 909, p. 860; Tatro v. Tatro, 18 Neb., 395; Adams v. Story, 135 Ill., 448.
    The court may award an allowance in lieu of dower, although the statute preserves the right of dower after divorce. Reed v. Reed, 86 Mich., 600; Owen v. Yale, 75 Mich., 256.
    It is true “immoral or illegal contracts will not be enforced; but if executed, courts will not disturb them, but will leave the parties as they find them.”
      Howell v. Fountain, 3 Ga., 176; Denton v. Erwin, 6 La. Ann., 317; Hertz v. Wilder, 10 La. Ann., 199; Summerlin v. Livingston, 15 La. Ann., 519; White v. Hunter, 23 N. H. (3 Fost.), 128; Denton v. English, 2 Nott. & M., 581; Inhabitants of Worcester v. Eaton, 11 Mass., 368; Moore v. Adams, 8 Ohio 373; Utter v. Walker’s Administrators, Wright’s Reports, 47; Rall v. Ragnet, 4 Ohio, 420.
    If we were seeking to compel her to make a deed under that decree covering her dower in these lands, then the decision of the circuit court would have been right. But we ask for nothing. It is she that seeks by that void contract to do something, namely, get pay for that dower twice. Gandy v. Gibbart, 1 Ohio St., 262; Williams v. Englebrecht, 37 Ohio St., 383.
    In the contract in this case are embraced three propositions:

      First — That Jane Julier should commence and prosecute to judgment a petition for a divorce against her husband, George 0. Julier.

      Second — That he should pay her a part of $12,-600.00, the precise amount therefor being indefinite, as and for her alimony in that case.

      Third — That included in that sum of $12,000.00 was a sum in payment for and in lieu of her dower in these lands.
    Of these three propositions, she had no legal right to make the first, and she had a perfect legal right to make the second and third. Widoe v. Webb, 20 Ohio St., 435; Ins. Co. v. Hull, 51 Ohio St., 270.
    In this case as that of the Bank of Chillicothe v. Swayne, et al., 8 Ohio, 289, quoted by this court in Ohio ex rel. v. Board of Education, 35 Ohio St., 525, the contract as to divorce is void, not because it was immoral or illegal, but because it is such a contract as the parties had no capacity to make. Lawson on Contracts, Section 339; State v. Faidley, 10 Ohio, 55; U. S. v. Mora, 97 U. S., 413; Gelpcke v. Dubuque, 1 Wallace, 221; U. S. v. Hudson, 10 Walace, 395.

      Because the consideration for that contract, namely, the payment to her for her alimony and dower by him was lawful and legitimate, and the law cannot punish her or him for the void park, because there is no law against it. It is simply void and nonenforceable as to the divorce part alone, because such contracts are against public policy, and being separable from the other portions of the contract the lawful are enforced.
    Again, we contend “that the decree is res judicata as to all matters existing at the time it was rendered.”
    She is estopped from making any claim to dower in this case, because by that decree she forfeited her right thereto. Section 930, page 888, Vol. 2, of Nelson on Divorce; Petersine v. Thomas, 28 Ohio St., 597; 1 Vol. Pomeroy’s Eq. Juris., Sec. 403, and same 2 Vol., page 1327.
    Where defendants, especially in equity, aré in fact adversary parties, as these parties were, the decree determining their relative rights is binding on them. Am. and Eng. Enel. Law, page. 83.
    Parties and privies to a judgment may not impeach it collaterally for fraud. 12 A. & E. Enel. Law, 147.
    If not for fraud, how can she impeach such a judgment as this, when she alone was the instigator and instrument by means whereof this decree found lodgment in the records of that court?
    But counsel in the court below contended that that decree being collusive was therefore void. Such is not the law now, and never was. 1 Nelson on Divorce, Sec. 500.
    But even if she were not estopped to deny the validity of this contract, when she permitted the decree to go upon the records, she forfeited the right to question the same. Zollner v. Zollner, 46 Mich., 511, and 4th ed. Bigelow on Estoppel, 447, 591, 596, 662 and 663; Beach, Modern Law of Contracts, vol. 2, sec. 1533; Richards v. Simmons, 47 Mo., 20; Pomeroy’s Eq. Jur., Vol. 2, Sec. 694, p. 1401; Weathersbee v. Fitch, 117 Ill., 75.
    The decision of the circuit court, as a matter of fact, if sustained in this court, amounts to the vacation of the decree of divorce. Harrison v. Ramsey, vol. 2, Vezey’s cases in Chancery, 488.
    And for these reasons she is estopped now to further be the beneficiary of her own wrong.
    Under the law and the evidence in this case, has Jane Julier any standing in a court of equity?
    If that contract, by reason of its illegality, is void as to him, how can she invoke its invalidity for herself, when she was a party to it? Kohen, Jr., v. Walton et al, 46 Ohio St,, 207.
    Was that contract authorized? Unquestionably it was. The law implies an authority arising from the retainer of counsel for him to act for the client in all points of doubt or discretion; the principal being compelled, at common law, to fulfill everything that is done by her attorney, whether by judgment or final record. Week’s Attorneys at Law, page 375; Page v. Brewer, 54 N. H., 187; Keith v. Keith, 26 Kan, 26; DeLouis v. Meek, 2 G, Greene, 55.
    There was no injustice done Jane Julier in the decree rendered, since she procured it and was benefited thereby.
    The compromise will ¿bind Jane Julier even if Ong had violated her instructions, unless the violation was known to George C. Julier. Swnifen v. Swnifen, 18 Com. B., 485; Swnifen v. Lord Chalmsford, 5 Hurl N., 890; Chambers v. Mason, 5 Com. B. N. S., 59; Chown v. Parrott, 14 Com. B. N. S., 74; Prestwitch v. Polley, 18 Com. B. N. S., 806; Fray v. Vanles, 1 El. & E., 839; Butler v. Knight, L. R. 2 Ex., 109; Thomas v. Harris, 27 L. J., N. S. Ex., 353; In Re Wood Eco Parte Wenham, 21 Weeks, Rep. 104; Wharton on Agency, Sec. 590; Weiland v. White, 109 Mass., 392; Potter v. Parsons, 14 Iowa, 286; Holmes v. Rodgers,
      13 Cala., 191; North Mo. R. R. v. Stephens, 36 Mo., 150; Reinholdt v. Alberti, 1 Binn., 469.
    And there is not a particle of testimony tending to show that George C. Julier was advised of the facts now contended for by her.
    Especially is this so if fairly made, and courts readily uphold them if they can find grounds in which to do so. Hodker v. Parker, 7 Cranch, 436; Roller v. Wallridge, 46 Texas, 485.
    There is no claim in this case that George C. Julier or his attorney, Judge McMath, had any knowledge that Judge Ong had no authority to make that contract.
    The evidence all shows that it was a very advantageous one to her. And above all, she thereafter accepted of its provisions. Doon v. Dunbar, 113 Mass., 151; Levy v. Brown, 56 Miss., 83; Bonney v. Merrill, 57 Me., 386; People v. Quick, 92 Ill., 580; Jeffries v. Insurance Company, 110 U. S., 305.
    Are these children to suffer because Jane Julier nine years after, and when George C. Julier’s lips are sealed in death, now says that Ong had no authority from her to so contract? If he had no authority, why did she accept the money paid her for, and in lieu of her dojver? Gilliard v. Smart, 6 Cowen, 389.
    Could Judge Ong, in the procurement of that decree, bind his client by having inserted therein the provisions he did? Most assuredly he could.
    An attorney, by virtue of his retainer and general control over a cause, has the power to bind his client by consenting to an order of court, and when such consent is properly given by an attorney, it cannot, after the order has been made, be revoked by the client. Hart v. Spaulding, 1 Cala., 214.
    And she could not procure a re-hearing after its entry, because there can be no re-hearing of a decree made by consent of counsel, although made without the parties’ consent. 1 Vol. A. & E. Enel. Law, 254.
    In an instrument containing distinct engagements by which a,party binds himself to do certain acts, some of which are legal and some illegal, the performance of those which are legal may be enforced, though those which are illegal cannot. Bank v. Breillatt, 4 Vol, Moore’s Jury Council, 152; Chase’s Executors v. Burkholder, 18 Pa. St., 50; Parsons on Contracts, Vol. 1, page 456 and 457, 6th Ed; State v. Williams, 29 Ohio St., 161; Brodish v. Gee, Ambler’s Reports, 673; Gifford, Adm’r., v. Thorn et al., 1 Stockton Eq. Rep., 722; Caster v. Clarke, 3 Edward’s Chan., page 410 and 432.
    When a matter is finally determined in an action between the same parties by a competent tribunal, it is to be considered at an end. Marvin v. Collins, 48 Ill., 156; Harrer v. Wallner, 80 Ill., 197; Chester v. Chester, 17 Mo. App., 657; Johnson v. Johnson, 65 Howard Pr., 517.
    Dower may be defeated, released or barred by the wife’s own acts in the way of estoppel. Smiley v. Wright, 2 Ohio 506; Elmendorf v. Lockwood, 57 N. Y., 322; 4 Lans., 393; Farrow v. Farrow, 1 Del. Ch., 457; Nelson v. Holly, 50 Ala., 3; Owen v. Yale, 75 Mich., 256; Tallinger v. Mandeville, 113 N. Y., 427; Loud v. Loud, 4 Bush., 458; Arnold v. Hempstead, 1 Amb. L., 466.
    Where a claim for dower is inconsistent with some other provision made for the widow, the widow will be compelled to elect whether she will take the benefit of such provision, or the benefit of what the law allows. Warfield v. Castleman, 5 T. B. Mon., 517; Taggart’s App., 99 Pa., 627; Endicott v. Endicott, 41 N. J. Eq., 93; Anthony v. Anthony, 5 New Eng. Rep., 41; 55 Conn., 256; Lively v. Paschal, 35 Ga., 218; Hamilton v. Buckwalter, 2 Yeates, 389; Jones v. Powell, 6 Johns Ch., 194, 2 Ch. L. ed. 97; Evans v. Evans, 3 Yeates, 507; Parham v. Parham, 6 Humph., 287; Birmingham v. Kirwan, 2 Sch. & Lef., 444; Apperson v. Bolton, 29 Ark., 418; Lord v. Lord,
      23 Conn., 327; Alling v. Chatfield, 42 Conn., 276; Van Guilder v. Justice, 56 Iowa, 669; Worthen v. Pearson, 33 Ga., 385; Colgate v. Cole, 23 N. J. Eq., 372; Tobias v. Ketcham, 32 N. Y., 319.
    Dower, like any other right, may be barred by acts and conduct sufficient to constitute an equitable estoppel. Dougrey v. Topping, 4 Paige, 94, 3 N. Y. Ch. L. ed., 357; Ellis v. Diddy, 1 Ind., 562; Collins v. Woods, 63 Ill., 285; Allen v. Allen, 112 Ill., 323; Connolly v. Branstler, 3 Bush., 702; Hoppin v. Hoppin, 96 Ill., 265; Lenfers v. Henke, 73 Ill., 405; Magee v. Mellon, 23 Miss., 585; Carter v. Walker, 2 Ohio St., 339; Gilbert v. Reynolds, 51 Ill., 513; Torrey v. Minor, 1 Smedes & M. Ch., 489.
    estoppel. Smiley v. Wright, 2 Ohio, 511; Dougrey v. Topping, 4 Paige, 94, 3 N. Y. Ch. L. ed., 357; Ellis v. Diddy, 1 Ind., 562; Collins v. Woods, 63 Ill., 285; Allen v. Allen, 112 Ill., 323; Connolly v. Branstler, 3 Bush., 702; Hoppin v. Hoppin, 96 Ill., 265; Lenfers y. Henke, 73 Ill., 405; Magee v. Mellon, 23 Miss., 585; Carter v. Walker, 2 Ohio St., 339; Gilbert v. Reynolds, 51 Ill., 513; Torrey v. Minor, 1 Smedes & M. Ch., 489.

      Henderson & Quail, for defendant in error.

      First — The decree had no effect upon the dower estate. Section 5699, R. S.; Foote v. Worthington, 2 Cleveland Law Rep., 274; King v. King, 9 Ct. Ct. R., 191; 2 Bishop on Marriage, Section 1522 ; 36 Barbour, 410; United States v. Walker, 109 U. S., 258; 6 Duer, 102; 4 Comstock, 95; 93 N. C., 418.

      Second — The question as to the plaintiff’s dower rights was not submitted by the pleadings to the judgment of the court.
    The effect of a judgment of this character was considered by this court in the case of Rosenbrough v.. Ansley, 35 Ohio St., 107; Spoors v. Coen, 44 Ohio St., 497; Freeman on Judg., Sec. 135.
    The power to hear and determine a cause is defined to be jurisdiction. Freeman on Judg., Sec. 118; Sheldon v. Newton, 3 Ohio St., 494; Wehrle v. Wehrle, 39 Ohio St., 365; 1 Freeman on Judgments, Sec. 120-C, Sec. 264 and Sec. 271.

      Third — The decree can not be regarded as a consent judgment.
    The principal contention of the plaintiffs in error is that the decree was entered by the consent of the parties, and that by such consent it became more effective than it otherwise might have been. This position, both with reference to the facts and the law of the case, is erroneous.

      Fourth — The acceptance by the defendant in error of the money provided for by the decree does not estop her from claiming dower.
    Nothing that was done by Mrs. Julier either in connection with the receipt of the money, or the entering of the decree, or the execution of the contract made at the time the case was commenced would estop her from claiming the rights claimed in this case. Her rights under the decree were clear. Her husband was ordered to pay to her $8,300.00 by way of alimony alone. So far as that portion of the decree is concerned it was perfectly valid. The court was given to understand that the amount was intended as a provision for alimony, and for no other purpose whatever. It was not informed as to the nature of the contract that had been entered into by the parties at the commencement of the case. .

      Fifth — The defendants pleaded the illegal contract as a part of the defense.
    The answers in this case set forth at length the execution and part performance of the original agreement, the terms of the decree, and the payments made thereunder, as constituting a defense. We maintain that it is not competent to show the agreement, or anything that was done thereunder, either for the purpose of proving a release of the dower rights, or for the purpose of endeavoring to give effect to the decree as being one taken by consent. The party who finds himself in a position where it is necessary to plead such an agreement, either for the purpose of establishing his rights as a plaintiff, or, as a defendant, or defeating the rights of a plaintiff whose case is made independently of such an agreement, must fail. Ins. Co. v. Hull, 51 Ohio St., 270.

      Sixth — If the decree must be supported by evidence in order to give it validity, the matters therein passed upon are not res judicata.

    This rule would seem necessarily to follow from the decisions of this court hereinbefore referred to. Lawrence Company v. Cotton Mills, 138 U. S., 552; Brownsville v. Logue, 129 U. S., 493; Railroad Co. v. Pacific Co., 137 U. S., 48; Gay v. Parpart, 106 U. S., 679; Wadhaus v. L. C. F. Gay, 73 Ill., 415; Edgerton v. Muse, 2 Hill (S. C.), 51; Jenkins v. Robinson, 1 Law Report; Scotch D. and App. Cases House of Lords, 117; O’Connell v. McNamara, 3 Dr. & Warren, 411.

      Seventh — The defendants did not aver or prove that the agreement relied upon as a bar to dower was fair, just, or reasonable.
    Inasmuch as the defendants pleaded and relied upon the contract for the purpose of supplementing and supporting the decree, and of establishing an estoppel, the burden was upon them to aver and prove that the contract was just and reasonable. Miller’s Ex’r v. Miller, 16 Ohio St., 528; Doerr v. Foresythe, Adm’rx, 50 Ohio St., 726.

      Eighth — The illegal stipulations in the contract are of such character as to vitiate the entire agreement.
    There would seem to be but little room for claiming that this is a case in which the illegal terms of the contract are severable. We shall content ourselves on this point with citing the following authorities: Stoutenburg v. Lybrand, 13 Ohio St., 228; Crawford v. Wick, 18 Ohio St., 190; 2 Bishop on Mar., Sections 691,696, 697, 252, 884 and 885; Greenwood on Public Policy, 490 to 492; Wright’s Reports, 284; 29 Indiana, 139; 25 Minnesota, 79.

      Ninth — The cases cited by the plaintiffs in error do not sustain their contention.
    It is claimed by the attorneys for the plaintiffs in error that the courts of other states have given effect to decrees entered in divorce cases wherein the wife Avas required to release her dower estate in the husband’s lands. An examination of these cases will reveal the fact that they were made under divorce and dower statutes materially different from our oAvn. 86 Mich., 600; 75 Mich., 256; 18 Nebraska, 395; 135 Ill., 448. In Iowa a divorced Avife is in no event entitled to doAver. 59 Iowa, 699; 61 Iowa, 174; 55 Cal., 384; 44 Penn St., 274; 9 B. Monroe, 454.
   Williams, J.

The prevailing rule, when not affected by statute, appears to be that after the dissolution of marriage by divorce, the wife is not entitled to doAver in lands possessed by the husband during the coverture, or at the time of his death, for the reason that marriage at the death of the husband is essential to the right- of doAver in his estate. The right accrues, it is said, to Avidows and not to divorced wives. A different rule has been established in this state by statute, (now section 5699) by which it is provided, that when a divorce is granted by reason of the husband’s aggression, the wife, if she survive him, “shall be entitled to dower in the real estate of the husband not allowed her as alimony, of which he Avas seized at any time during the coverture, and to which she had not relinquished the right of dower.”

It cannot Avell be contended that, in order to bar this dower right of a divorced wife, it is necessary the relinquishment should be made before the divorce is obtained, nor that it may not be accomplished, Avhere the proceedings are regular, by a provision in the decree of divorce. The statute, hoAvever, is enabling in its character, giving a right of dower where without it none existed. It creates no disability, nor imposes any restraint on the power of the divorced wife to release her dower right in any lawful mode, either when the divorce is granted, or at any time thereafter. And a judgment of a competent court having jurisdiction of the parties and subject matter, may be as effectual a bar, as a release by deed.

The rule that obtained in chancery with respect to the effect of a decree for a conveyance and the method of enforcing it, has been somewhat enlarged by our legislation, (now section 5318), by which it is enacted that: “When the party against whom a judgment for a conveyance, release, or acquittance is rendered does not comply therewith by the time appointed, such judgment shall have the same operation and effect, and be as available as if the conveyance, release, or acquittance had been executed conformably to such judgment.” So that, if the court by which the judgment in the divorce case was entered, was clothed with the necessary jurisdiction to render the same, the rights of the parties in this case are precisely the same as if the defendant in error had duly executed and delivered the deed of release as therein ordered.

The jurisdiction of the court in that case to render that part of the decree which relates to the release by the plaintiff therein of her right of dower, is contested here on the ground that the plaintiff’s dower right was not a subject matter before the court for adjudication; and, that it was not as a separate and independent subject of adjudication, may be conceded. But under a prayer for general relief in an action for divorce, properly instituted, it is within the jurisdiction of the court to settle and adjust by its judgment, the rights of the parties with respect to the amount and nature of the alimony that shall be awarded the wife, and the terms and conditions of its payment; and, it appears to be well settled that in awarding the alimony, the court may, in its discretion, and generally will, confirm and carry into effect by its decree, any agreement which the parties have entered into concerning the same, that the court deems just and reasonable, and in doing so, may adjudge the conveyance of real property by one- to the other, in pursuance of such agreement. It it laid down as a general rule, in Nelson on Divorce and Separation, section 915, that: “The agreement of the parties with respect to permanent alimony is valid, and will generally be approved by the court, and a decree may be entered in conformity to it.” In the absence of a saving provision by statute, as has already been noticed, all right of dower in the husband’s lands ceased on the dissolution of the marriage relation by divorce; and when, on granting an absolute divorce, a provision was made for the wife, either in a general decree for alimony, or in a decree entered in conformity with the agreement of the parties, such provision was presumed to be in lieu of dower. And where by statute the right of dower is preserved after divorce, it seems to be an established rule that the court may make an allowance of alimony in lieu of the dower, especially where the parties have so agreed. Nelson on Divorce and Separation, Sec. 909. In Owen v. Yale, 75 Mich., 256, it was held that a consent decree made after the announcement by the "court that a divorce would be granted, providing for such divorce, and for the payment of a gross sum as alimony, “to be in full of all claims of the complainant against the defendant or his property, which payment has been made according to the terms of the decree, is a bar to any claim of the wife to dower.” Among other cases which sustain the jurisdiction of the court in divorce cases to render such decrees, and their binding force on the parties, are Reed v. Reed, 86 Mich., 600; Tatro v. Tatro, 18 Neb., 395; Calame v. Calame, 24 N. J. Eq., 440; Webster v. Webster, 64 Wis., 439; Twing v. O’Meara, 59 Iowa, 326. On this subject it is sensibly said by Asbburn, J., in Petersine v. Thomas, 28 Ohio St., 596, 599, that: “Under our statute a divorce contemplates a final separation of the parties. Their paths in life henceforth diverge, and, in legal contemplation, they are to each other as strangers. When not otherwise provided, we think the statute contemplates that, at the time of decreeing the divorce, the court will adjust all the pecuniary rights of the parties in relation to each other springing out of the marital relation about to be forever annulled. To this end the court is given full discretionary authority to make such order concerning the division of the property and support of the children as to the court shall appear, finder ali the facts and circumstances, just, equitable, and reasonable.”

The parties in the case before us were competent under the statute to contract with each other, and there is no reason why, in agreeing upon the amount that should be paid the wife in money, they migjit not stipulate for the release of the interest of either in the property of the other. The decree itself is conclusive evidence that the court was satisfied the agreement on which it was rendered was reasonable and just in all of its provisions as carried into the decree, all of which, in our opinion, it was within the jurisdiction of the court to confirm and enforce by its judgment.

An objection is made to the operation of the decree in question as a bar to the right of dower claimed, on the ground that the agreement on which the decree is founded, is an unlawful one; the stipulation looking to an immediate divorce being, it is said, against public policy and rendering the whole contract void. This objection is not available. The alleged infirmity does not appear in the decree, nor in the record of that case. The agreement, whatever its terms, was merged in the judgment, which, being regular on its face, and, as has been seen, rendered by a court of competent jurisdiction, is supported by the conclusive presumption that every fact necessary t® sustain it was properly brought before the court. The judgment cannot be impeached except by a direct proceeding to reverse or annul it. And even in a proceeding of that character, the party asserting the illegality of the agreement as a ground of relief would find serious obstacles in the way of obtaining any assistance from the courts. Certainly as long as the decree remains in force the parties to it are estopped from alleging or proving the agreement was illegal, or disputing its validity. Bank v. Stevens, 1 Ohio St., 233.

It is urged, however, that as the defendants beIoav plead and proved the agreement in support of their defense, they brought themselves within that principle which denies the aid of the courts to those who are parties to illegal transactions. That principle is not applicable to them. The agreement was no longer executory. It was executed by the decree, as fully as if tire wife in pursuance of it had lawfully made and delivered a deed of release of her dower right. Resort to the agreement was unnecessary in order to establish the right to the relief the defendants were seeking. The decree, unaided by any other fact, constituted the legal bar they set up to the dower claimed. And though they plead the agreement, and assuming the burden imposed by the court, produced it in evidence, it did not affect the validity or operation of the decree, but was as harmless as it was immaterial, being neither necessary to establish the defense, nor competent to invalidate the decree.

The remaining objection made to that part of the decree in question is, that it was made a part thereof, and so entered of record, without the knowledge or consent of the defendant in error, the plaintiff in that case. It is admitted that the attorney who took the decree in behalf of the plaintiff had full knowledge of its contents as entered, and agreed to all of its provisions; and, that he was authorized to represent the plaintiff in the bringing and conduct of the suit, and in all things pertaining to her interests in the case, including the making of all proper arrangements for securing to her the most advantageous provisions for alimony out of the husband’s estate. There was no express limitation on his authority in this respect. The plaintiff relied on his skill and judgment. In making the arrangement in her behalf, he no doubt deemed it advisable and beneficial to his client that she should relinquish her inchoate dower in order to obtain a larger amount of alimony in money than she would otherwise be able to obtain; and in so securing for her, by the surrender of a mere contingency that might never ripen into any actual value, something of present and substantial value, we are not satisfied he violated his professional trust, nor that the decree entered in pursuance of the agreement is void.

Besides, no fraud is charged against the defendant in that case, or his attorney, nor any collusion with the attorney of the plaintiff. The decree being a public record in her own case, was certainly sufficient to charge her with constructive notice of its provisions after its rendition; and the record here fails to show that she has not, at all time since, had actual knowledge of those provisions. Her pleading and the finding of the court on that subject, in this case, go no further than that the feature now objected to was inserted in the decree and so entered without her knowledge; and, though not important, it may be observed that the plaintiff, who alone could know what knowledge she possessed, was not produced as a witness. She did not choose to avail herself of her remedy, if she could show sufficient grounds therefor,. by a direct proceeding to have the decree vacated or opened up, to which she might have resorted at any time short of the statutory bar, but permitted the decree to remain unquestioned until the commencement of the action below, more than ten years subsequent to its rendition, and in the meantime accepted, and retains all the fruits of the judgment, all that was beneficial to her. Upon no sound principle of law or justice can she now be released from the obligations of the judgment on the plea that she was ignorant of its provisions as entered of record, or that her attorney was without authority to have it so entered.

The judgment rendered in the circuit court in the first of these cases, awarding dower to the defendant in error, will be reversed, and judgment rendered for the plaintiffs in error. And the orders and proceedings in the second case, being founded on the judgment in the first one, must also be reversed and set aside.

Judgment accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    Hays et al. v. the City of Cincinnati et al.

      Limitations of assessments on city lots — To twenty-five per cent, of value of lot — Sections 2271 and 2272 Rev. Stat. — Assessment in excess can only be made by proper petition of abutting owners, etc.

    .1. The general ftile with respect to the amount oí any assessment that may be levied upon any lot or land for any improvement made by a city of the first gra-le of the first class, is that prescribed by section 2271 of the Revised Statutes, which limits all such assessments to twenty-five per cent, of the value of the lot or land after the improvement is made; and to warrant an assessment beyond that amount a case must be plainly made that is within the exception contained in section 2272, which can only be done by proper petition thereunder; and, in ascertaining the effect of a petition presented, reference should be had te the law in force, and the situation of the parties, at the time of its presentation.
    2. In May, 1892, a petition for a proposed street improvement, subscribed by less than three-fourths in interest of the owners of the property abutting thereon, was presented to the proper municipal board of the city of Cincinnati, by which it was referred to the engineer, whose report showed it was insufficient to warrant an assessment of the property of the petitioners for more than twenty-five per cent, of its value. No step was then taken toward the improvement of the street for more than two years, when, in July, 1894, a resolution to improve the street was adopted, and in November, 1894, an improvement ordinance was passed, under which the improvement was made. When the petition was presented, and reported upon by the engineer, it was necessary under section 2272, as then in force, to authorize an assessment exceeding the twenty-five per cent, limitation, that the petition should be subscribed and presented by three-fourths in interest of all the owners of the abutting property. When the resolution and ordinance to improve were adopted, and the improvement made, that section a* amended May 21, 1894 (91 O. L., 428) was in force. Held: that an assessment upon the lots of the petitioners, for more than twenty-five per cent, of their value, was unauthorized, and the excess void.
    (Decided February 20, 1900.)

      Error to the Superior Court of Cincinnati.
    The action below was brought in the superior court, by the plaintiffs in error, to enjoin assessments on their lots, levied by the municipal authorities of the city of Cincinnati, for the improvement of Goodwin street. The case was tried at special term and reserved to the general term where judgment was rendered against the plaintiffs, who thereupon brought the case on error to this court. The facts appear in the opinion.

      F. G. Ampt, for plaintiffs in error.

      Éllis G. Kinkead, Corporation Counsel, for defendants in error.
   Williams, J.

No complaint is made with respect to the regularity of the proceedings for the improvement, or the validity of the assessments to the extent of twenty-five per cent, of the value of the plaintiffs’ lots after the improvement was made. The assessment on some of the lots exceeded their entire value, as found by the court, and on all the others is largely in excess of twenty-five per cent, of their value. An amount equal to twenty-five per cent, of the value of each lot was tendered by the plaintiffs to the city, and refused by it, before the commencement of the suit, which was brought to enjoin the assessments in so far as they are in excess of that amount. The assessments on the plaintiffs’ lots, to the extent of their full value, were sustained by the court below, on the ground that the owners had filed with the appropriate municipal board a petition requesting the improvement to be made. It appears from the record that a petition for the improvement, signed by the plaintiffs and others who were the owners, in the aggregate, of about one-fourth in interest of the property abutting on that part of the street sought to be improved, was presented to the proper municipal board of the city of Cincinnati on the 26th day of May, 1892, and then referred by the board to its engineer for verification of the signatures, and for report upon the abutting frontage of the property owned by the subscribers. On the 2nd day of June, 1892, the engineer made his report showing that the total frontage of the property abutting on the proposed improvement was 2835 feet, of which the petitioners were the owners of but 738 feet, being less than one-third of the whole number of feet front. No additional signatures were obtained to that petition, nor was any other petition for the improvement filed or presented to the municipal authorities. After the report of the engineer, no step was taken toward the improvement of Goodwin street until July 6, 1894, when a resolution was adopted declaring it necessary to improve that street between certain designated points, by grading, etc. Notice of this resolution was duly given, and on the 2nd day of November, 1894, an ordinance was passed to improve the street and assess the expenses upon the abutting property, according to the foot front. Under this ordinance the improvement was made, and to pay the cost thereof the assessment in question was levied. At the time the petition referred to was presented and the report of the engineer thereon was made, the statute (Section 2271) provided that: “In cities of the first grade of the first class, the tax or assessment specially levied or assessed upon any lot or land for any improvement, shall not, except as provided for in section 2272, exceed twenty-five per centum of the value of such lot or land after the improvement is made, and the cost exceeding that per centum shall be paid by the corporation out of its general revenue.” The exception, then contained in section 2272, to the limitation thus imposed on the amount of assessments, was that: “When a petition,' subscribed by three-fourths in interest of the owners of property abutting upon any street or highway, of any description, is regularly presented to the council for the purpose, the cost of any improvement of such street or highway may he assessed and collected in equal annual installments, proportioned to the whole assessment, in a manner to be indicated in the petition, or if not so indicated, then in the manner which may be fixed by council; but when the lot or land of one who did not subscribe the petition is assessed, such assessment shall not exceed twenty-five per centum of the value of his lot or land after the improvement is made.” This section was amended by the act of May 21, 1894 (91 O. L., 428), by substituting the words “any owner or owners,” for “three-fourths in interest of the owners,” and the “board of administration,” for the “council.” So that, the petition for the improvement, when presented and reported upon by the engineer, not being signed by the requisite number in interest of the abutting owners, neither removed nor waived the limitation of section 2271, on the amount that might lawfully be assessed on the plaintiffs’ lots. But, if the petition is to be treated as one under the amendment of May 21, 1894, it authorized the assessment as sustained by the court below. The precise question, therefore, is not whether the assessment for an improvement should be made in conformity Avith the law in force Avhen the ordinance for the improvement was adopted, but rather, are the plaintiffs to be regarded as petitioners for the improvement under the amendatory act of 1894. If they are not, an assessment upon their lots in excess of the limitation prescribed by section 2271, is not in conformity with the law in force when the improvement ordinance was passed.-

It is not claimed that any petition for the improvement of Goodwin street was presented by the plaintiffs after the statute was amended in 1894. But it is sought to hold them as petitioners thereunder upon the ground that the petition previously presented constituted a continuing offer to submit to an unlimited assessment, which became binding by its accordance resulting from the adoption of the resolution and ordinance under which the improvement was made. We are unable to concur in the view, either that the petition, after the engineer reported it was insufficient to affect the general limitation upon assessments, continued to be such a request for the improvement after the statute was amended, or, if so, that there was an acceptance of it by the defendant. More than two years elapsed after that report was made, before the resolution for the improvement of the street was adopted. It does not appear that in adopting the resolution, or the passage of the improvement ordinance, the board of legislation acted upon, or was influenciad by the petition, or had any knowledge of its existence; and, so far as the record shows, nothing more was heard of the petition from the time the engineer reported it insufficient, until the assessment was made in 1895. But if it be conceded that by reson of the failure to withdraw the petition it should be treated as an offer continuing indefinitely, the acceptance of which at any time would become the equivalent of a contract or consent by which the plaintiffs would be bound, the question remains, what were the terms and conditions of the offer when made? It is well settled that a proposal by one person to another imposes no obligation upon the former until it is accepted by the latter according to the terms in which the offer is made; and any qualification of, or departure from those terms invalidates the offer, unless the same be otherwise agreed to fly the person who made it. Both parties must assent to the same -thing in the same sense. What, then, were the nature and effect of the proposal made by the plaintiffs by the presentation of their petition for the improvement? There is nothing to show that it contained any special terms or stipulations. The finding of the court is simply that the plaintiffs presented a petition for the improvement. In determining the effect of such a petition reference must he had to the law in force, and the situation of the parties, at the time of its presentation. As the law then stood, unless the owners of three-fourths in interest ©f the property abutting on the proposed improvement should unite in the petition, it did not dispense with the requirement that the assessments on their lots for the cost of the improvement should be limited to twenty-five per cent, of their value, nor have any other effect whatever; and, it was therefore necessarily implied in the proposal, as a condition of the waiver of that limitation, that the necessary three-fourths in interest, of the owners, should become petitioners, either by subscribing that petition, or presenting another of like import. The plaintiffs manifested their willingness, and proposed, to bear their pro rata share of the cost of the improvement requested, properly apportioned among all of the required number of lot owners when they should agree thereto, though the assessment upon each lot should exceed the twenty-five per cent, limitation, but they did not propose to assume any greater burden. In this sense the petition was understood and acted upon by the municipal authorities, for, when it was ascertained from the report of the engineer that the required number of lot owners had not become petitioners, no further step was taken under it. The petition could mean nothing else, for under the statute it could have no other effect. In that sense the petition was never accepted, nor was the condition upon which ft could have become of any binding force complied with. A subsequent change in the law did not change the character or conditions of the offer. Being, when made, a proposal of the nature and effect stated, if it could be held to have continued as an offer after the report of the engineer showing its insufficiency, it must be considered as continuing only according to its terms and conditions when made. It did not become a new offer on different terms by the failure to withdraw the petition from the files after notice of the adoption of a resolution to improve the street. Such a notice is required to be given all land owners affected, in all cases of street improvements, and that given the plaintiffs in no way apprised them that their petition presented and found insufficient more than two years before, was to be accepted or relied on by the municipal authorities, as a petition under the amendatory statute. And, acquiescence in the improvement falls short of assent by the plaintiffs to an unlimited assessment on their property therefor.

We do not question the rule laid down in Campbell v. Park, 32 Ohio St., 544, that it is not necessary all petitioners for an improvement should sign the same petition, but if several petitions are signed by different competent petitioners aggregating the required number to give jurisdiction, the order for the improvement may lawfully be made. The rule, has no application to this case. There the required number of land owners were petitioners, and the proceeding under the petitions was continuously prosecuted. Nor, do we question the doctrine of Cincinnati v. Seasongood, 46 Ohio St., 296, and Shehan v. Cincinnati, 25 W. L. B., 212, that the law in force when the improvement ordinance is passed furnishes the rule of assessment. It must be borne in mind that section 2271, was in force Avhen the improvement ordinance in this case was passed, as well as the amendment of 1894 to section 2272. The former furnishes the general rule for all assessments, for every improvement, and that rule must be uniformly applied, and the assessment accordingly limited, unless a case is plainly made for the application of the exception contained in the latter section, which can only be done by proper petition thereunder. And since, as has been seen, the record does not bring the plaintiffs within that exception, the assessments against their property must be limited according to the general rule, and the excess over that amount is illegal.

The judgment below will be reversed, and judgment rendered enjoining the collection of the assessments against the plaintiffs’ lots, in excess of twenty-five per cent, of their value as found by the court below.

Judgment accordingly.


author: By the Court:

text:
    State of Ohio ex rel. Reynolds v. the Capital City Dairy Co., et al.

      Injunction will not lie at suit of dairy and food inspector — To compel manufacturer to furnish sample for analysis — Remedy is by prosecution — Section 4200-7 Rev. Stat.

    Injunction will not lie at the suit of an inspector employed by the dairy and food commissioner, to compel a manufacturer and seller of an article of food or drink to furnish, for analysis, as provided by section 4200-7 of Bates Annotated Statutes, samples of the article manufactured or sold. The remedy for refusal to comply with the requirements of that section is by prosecution under the succeeding section.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Franklin county.
    The action below was brought in the court of common pleas by the relator against the Capital City Dairy Company, an Ohio corporation, and two of its officers, to compel them to furnish the relator samples of their product, for analysis, in order that it might be ascertained whether the product was of the standard required by the pure food laws of the state.
    The material allegations of the petition are that the relator who is an inspector appointed by the Dairy and Food Commissioner, demanded of the defendants, who are manufacturers and sellers of oleomargarine, samples of their production, for the purpose of having them analyzed; which demand was refused by the defendants, though the relator tendered them the value of the articles demanded. And the prayer, in substance, is for a mandatory injunction to compel the defendants to furnish the relator such samples.
    The case was taken on appeal to the circuit court, where a general demurrer to the petition was sustained, and final judgment rendered dismissing the petition, and for costs against the relator, who prosecutes error from-that judgment.

      E. B. Dillon, for plaintiff in error.

      Thomas E. Steele, for defendant in error.
   By the Court:

The statutory provisions on which the relator bases his right of action are those which authorize and require the Dairy and Food Commissioner, and either of the two assistant commissioners which he may appoint, to inspect all articles of food or drink made or offered for sale in this state, and to .prosecute all persons engaged in the manufacture and sale of such articles that are adulterated in violation of the laws of the state; and those by which it is provided that the commissioner, or an assistant commissioner, may enter any place where articles of food or drink are made or sold, and cause such articles to be examined and analyzed, and to employ such experts, chemists, agents, inspectors, and counsel as may by him be deemed necessary for the proper enforcement of the pure food laws of the state. Sections 409-8, 409-9, 409-10, Bates’ Annotated Statutes. The statute also provides (section 4200-7) that: “Every person manufacturing, offering or exposing for sale, or delivering to a purchaser, any drug or article of food, included in the provisions of this act, shall furnish to any person interested, or demanding the same, who shall apply to him for the purpose, and shall tender him the value of the same, a sample sufficient for the analysis of any such drug or article of food which is in his possession.”

The consequences for failure to comply with this provision are prescribed by section 4200-8, which provides that: “Whoever refuses to comply, upon demand, with the requirements of” the preceding section, “and whoever violates any of the provisions of this act, shall be guilty of a misdemeanor, and upon conviction shall b® fined not exceeding one hundred dollars nor less than twenty-five dollars, or imprisoned not exceeding one hundred nor less than thirty days, or both. Any person found guilty of manufacturing., offering for sale or selling an adulterated article of food or drug under the provisions of this act, shall be adjudged to pay, in addition to the penalties herein provided for, all necessary costs and expenses incurred in inspecting and analyzing such adulterated articles of which said person may have been found guilty of manufacturing, selling or offering for sale.”

Subsequent sections of the statutes place certain restrictions upon the manufacture and sale of oleomargarine; and it is provided by section 4200-20 that: “Any manufacturer who violates any of the provisions of this act shall, upon conviction thereof, be fined in any sum not less than one hundred dollars nor more than five hundred dollars; and for each subsequent offense, in addition to the above fine, may be imprisoned in the county jail not more than ninety days. Any other person violating any of the provisions of this act shall, upon conviction thereof, be fined not less than fifty dollars nor more than one hundred dollars.” No civil remedy is anywhere given by the statute. We find no authority for the institution of an action like this one, in the name of the state. The remedy of the state for infractions of its penal and punitive laws, lies in the proper prosecution for the enforcement of the penalties and punishment prescribed, in the mode provided by statute, except that when^ such infractions constitute an abuse or misuse of corporate franchises proceedings in quo loarranto may also be maintained. Nor can the action be maintained as one in behalf of the relator individually; for the statute gives no private remedy of that kind. The rule is well settled that, where there is no threatened inury to personal or property rights, equity will not lend its aid by injunction to restrain the volation of public or penal statutes, or the commission of criminal acts. The legislature deemed the penalties imposed an adequate remedy for any violation of these statutory provisions; and, as the statute which creates the duty and obligation to furnish for analysis samples of articles manufactured and sold for food, has provided no other remedy for the failure to perform that duty except a prosecution for the enforcement of the penalties it has prescribed, that must be regarded as the exclusive remedy therefor. Commissioners v. Bank, 32 Ohio St,, 194.

It is unnecessary to consider how far interference with official action may be prevented by injunction, because the relator is not an officer, but an employe, merely, and the petition shows no interference with any official act.

J adgment affirmed.


author: Minshall, J.

text:
    Overturf v. Gerlach.

      Compensation to administrator■ — Cannot be attached by creditor of administrator — Until' such compensation is allowed by probate court.

    Until allowed by the probate court, the compensation and commissions of an administrator or executor to which he may be entitled in the settlement of an estate, can not be attached or, by any similar process, appropriated to the payment of his claim by a creditor of such executor or administrator.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Scioto county.
    The plaintiff below as a judgment creditor commenced an action in the common pleas against his debtor, John W. Overturf and others, to have applied to the payment of his judgment the fees, commissions, etc., of Overturf as executor of certain estates, on the ground of the latter’s insolvency, and his inability to have satisfaction of his judgment. The-case having been appealed to the circuit court, was there first heard on demurrer to the petition, which was overruled. The defendants then answered and a trial was had on the issues; and a finding of facts made at the request of the defendant, Overturf, on A^hich the court rendered judgment for the plaintiff, and appointed a receiver. The finding of facts does not vary materially from the facts stated in the petition; so that if the petition is sufficient, the judgment should be affirmed, otherwise reversed.
    The petition states the recovery by the plaintiff against the defendant, Overturf, of a judgment for $1,954 and some cents, at the January term, 1895, of the court of common pleas; and that the defendant is insolvent and has no property on which an execution can be levied.
    It is then averred:
    “The said defendant, John W. Overturf, is, and for several years last past, has been one of the executors of the last will and testament of William A. Marsh, late of the county of Scioto, Ohio, deceased, duly appointed by and qualified in the probate court of the said county of Scioto, and the defendant, James S. Marsh, is co-executor of the said last will and testament, and moneys belonging to the estate of the said testator have been received and disbursed by them, Avithin the past two or three years, in excess of $60,000.00, and the said John W. Overturf, defendant, has earned large fees, commissions, compensations and reAvards in the course of the settlement and administration of the said estate, part of which are due and payable to him, upon the joint check, draft, order or demand of himself and his co-defendant, James S. Marsh, as executors of the said last will and testament of the said testator, and part of which will become due and payable when fixed, determined and allowed by the said probate court!
    “The said John W. Overturf, defendant, is, and for several years last past, has been one of the executors of the last will and testament of Daniel F. Connell, late of the county of Scioto, Ohio, deceased, duly appointed by and qualified in the probate court of the said county, and the defendants, George W. Connell and William A. Connell, are co-executors of the said last will and testament and they have acted as said executors since about the — day of August, 1891, and moneys belonging to the said testator have been received and disbursed by them, since the date of their said appointment in excess of $75,000.00, and the said John W. Overturf, defendant, has earned large fees, commissions, compensations and rewards in the course of the settlement and administration of the said estate, part of which are due and payable to him, upon the joint check, draft, order or demand of himself and his co-defendants, George W. Connell and William A. Connell as executors of the last will and testament of the said testator, and part of which Avill become due and payable when fixed, determined and alloAA7ed by the said probate court.
    “The said John W. Overturf refuses to apply the fees, commissions, compensations and rewards that have been earned by him, in the course of the settlement of the estate of the said William A. Marsh, deceased, and of the estate of the said Daniel F. Connell, deceased, upon the judgment, hereinbefore mentioned, and the said fees, commissions, cempensations and reAvards can not be collected upon execution, and the plaintiff has no adequate remedy at laAV by which he can collect the same and apply the same, when collected, upon the said judgment aforesaid.”
    He then prays for a finding of the amount due him; and that a receiver be appointed to receive and collect the “fees, commissions, compensations and rewards,” due Oyerturf in the administration of these estates, and apply them to the amount due the plaintiff; and for an order restraining their payment to Overturf as an individual.

      A. T. Holcomb, for plaintiff in error.

      T. G. Anderson, for defendant in error.
   Minshall, J.

The question presented in this case is whether the fees and compensation of an executor or administrator may be reached by a creditor during the administration of the estate. Generally, subject to some exemptions, any sum of money due a debtor may be reached in a proper proceeding by his creditor Avhere he refuses to apply it to the claim of the creditor. Section 5464, Revised Statutes. But the money must be due or to become due, subject to no other condition than the lapse of time, for the proceeding presupposes the power to order, without qualification, the payment of money due the debtor from another to the debtor’s creditor. In the case before us these conditions do not exist. Overturf, whatever the assets of the two estates may be, may not be entitled to the compensation and commissions provided by law at his final settlement. This will depend upon the judgment and allowance of the probate court. By reason of maladministration he may be entitled to nothing, and nothing may be allowed him. Hence, until one or the other of the two estates, on which he is administering, has been settled, or some allowance has been made him by the probate court, it cannot be said that anything is due him therefor.

It will be observed that there is no averment in the petition that any sum has been allowed the executor in either case; nor is there any such finding of fact. The statute, Sec. 6188, Revised Statutes, does not say that the commissions there provided, for shall be allowed the executor or administrator, but that they “may,” and this will depend upon the conditions before stated.

The defendant in error claims that the question is ruled by Newark v. Funk, 15 Ohio St., 462. But that case is quite distinguishable from this. There the attachment was of part of the salary of the marshal of the city, that he had permitted to accumulate in the treasury. It was due and payable. The court in deciding the case was careful to say: “We do not say, nor suppose, that a salary that is not yet earned, or for the payment of which the proper period has not yet arrived, can be garnisheed, or attached. It must be a subsisting claim, due or to become due, and for the ultimate payment of which the obligation to pay is fixed, without reference to future services or considerations.” There is, then, a marked difference in the two cases.

It might be further observed that to permit the fees and compensation of an administrator to be attached before they ha.ve been earned, or allowed by the probate court, would be productive of much embarrassment in the settlement of estates, and interfere with the jurisdiction of the probate court in their settlement. Such an attachment would probably require the removal of the executor or administrator, as without this being done, no court could determine but that at final settlement, it would be unable to do that justice between the estate and the administrator, which the circumstances might require.

Whilst the embarrassment that might affect the public service in the attachment of the salary of a public officer, was not regarded, in the case above cited, of such a grave character, as, on grounds of public policy, to forbid its adoption by a creditor, yet its impolicy in the case of administrators, for the reasons stated, is more apparent than in the case of public officers, and has not been sustained by any court. Without the appointment of a receiver, as was done in this case, the order on the administrator would be of little avail. This would be likely to result in a conflict between two courts, to some extent exercising jurisdiction over the same subject matter— the assets of the estate of a deceased person. The receiver acting under the order of the court appointing him, and the administrator under that of the probate court, which, in case of a conflict, should determine, whether a given sum should be paid the receiver, the common pleas or the probate court? Surely the common pleas could not, without invading the jurisdiction of the probate court, do so; so that the appointment of a receiver would be of no avail; and this shows that such a practice would not be well founded in principle; and yet, as before suggested, without the appointment of a receiver little or nothing could be accomplished.

Judgment reversed and petition below dismissed.


text:
    Trout v. Marvin.

      Gaming laws— Sections 4273 and 4273 Rev. Stat. — Judgment for money■ lost at gaming — Lien on property where gaming was had — Reversal of judgment against property owner as winner— Not res adjudicata as to lien on property for winnings by others. \

    1. A judgment recovered under section 4273, Revised Statutes, by a third person for money won by the defendant from another at gaming, may, under section 4273, Revised Statutes, be made a lien on the property where the gaming was had with the knowledge of the owner; the reason of the statute having reference to the discouragement of gambling rather than to the natural justice of the case as between parties.
    2. Where a judgment, recovered against three persons under section 4273, Revised Statutes, for money won by them at gaming, is afterwards reversed as to one and affirmed as to the other two, in an action afterwards brought under section 4273, Revised Statutes, to make the judgment a lien on the property of the one as to whom it was reversed, the reversal of the judgment as to him can not be pleaded as res adjudicata in the latter action, the latter not being for the recovery of money won by the defendant, but to make a judgment therefor against others a lien on his property where, with his knowledge, the gaming was conducted and the money vson.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Hancock county.
    The question in this case arises upon the sufficiency of the petition in the court below, the action having been commenced March 7, 1896. It was an action commenced by the plaintiff in error against the defendant, under Sec. 4275, Revised Statutes, to make a judgment she had recovered against James Clifford and Jacob Gossman for money won by them of her husband, a lien on the property where the gaming was carried on with the knowledge of the OAvner, the defendant, William Marvin. A demurrer to the petition was sustained Avhich was affirmed by the circuit court.
    The petition states that William Marvin is the jAvner of certain property, particularly described therein, and had been for more than four years prior to the commencement of the action. That from March 20,1893, to March 19,1894, Clifford and Gossman had carried on the business of gaming and gambling in rooms in a building on the above described property belonging to Marvin, with his knowledge during all the time. That at the March term, 1895, of the court of common pleas she recovered a judgment against Clifford, Gossman and Marvin for $3473.00 and costs of suit under Sec. 4273, Revised Statutes, for money lost by her husband at gaming and won by the defendants. That afterwards the defendants prosecuted error to the circuit court where the judgment was reversed as to Marvin and affirmed as to Clifford and Gossman. That the games of chance in which the money was lost by her husband, Avere played within the period from March 20, 1893, to March 19, 1894, in rooms in a building on the property owned by Marvin as before stated, and with his knoAvledge during all the time; and asks that the judgment be made a lien on the property.
    The following sections of the statute are here inserted for convenience in considering the case:
    Section 4270: If any person, by playing at any game, or by means of any bet or wager, loses to any other person any sum of money or other thing of value, and pays or delivers the same, or any part thereof, to the winner, the person who so loses and pays, or delivers may, at any time within six months next after such loss and payment or delivery, sue for and recover the money or thing of value so lost and paid or delivered, or any part thereof, from the winner thereof, with costs of suit, by civil action founded on this chapter, before any court of competent jurisdiction.
    Section 4273: If the person losing such money or thing of value as provided in section forty-two hundred and seventy does not, within the time therein specified, without collusion or deceit, sue, and with effect prosecute, for the money or thing of value so lost and paid or delivered, any person may sue for. and recover the same, with costs of suit, against any winner as aforesaid, for the use of the person prosecuting the same.
    Section 4275: The property, both real and persdnal, of a defendant, against whom a judgment is rendered under this chapter, either for fines, coste or to recover money, or other thing of value, lost or paid, shall be liable therefor, without exemption, and such judgment shall be a lien thereon until paid; if the owner of the building in which the money was lost knowingly permits it to be used for gaming purposes, such building, and the real estate upon which it stands, shall be liable therefor in the same manner; and the guardian or trustee of a minor, insane person or idiot, who permits any property under his charge to be used for gaming-purposes, and the same becomes liable on account thereof, shall be liable to his ward for the amount thereof.”

      John Poe, foiyplaintiff in error.

      Geo. H. Phelps and J. A. & E. V. Bope, for defendant in error.
   Minshall, J.

Two grounds are relied on in support of the demurrer i 1. The action against the defendant is res adjudícala. 2. The provisions of Sec. 4275, Revised Statutes, apply .onlyato judgments recovered by the loser under Sec. 4270, Revised Statutes.

We will briefly notice these objections in their order.

The judgment recovered against Marvin, Clifford and Gossman, and reversed as to Marvin, was recovered under sestion 4273, giving to a person, other than the loser, the right to recover money lost at gaming, where the loser fails within the time allowed him, to do so under Sec. 4270. Hence this action is not the same action previously brought against Marvin, Clifford and Gossman, the judgment in which was reversed as to Marvin by the circuit court, and is not, therefore, ros adjudicada. The object of this suit is to make the judgment recovered against Clifford and Gossman for money won by them at gáming, and which remains in full force and unreversed, a lien on the property where the gaming was carried on with the knowledge of the OAvner. Doubtless the judgment in the former suit against all three of them was reArers.ed as to Marvin, for the reason, that, in the opinion of the circuit court, there was not sufficient evidence to make him liable as a winner. This, however, does not affect the question as to whether his property may not be made liable to the lien of the judgment rendered against Clifford and Gossman, should it be made to appear, as is averred, that the gaming in which the money was lost, was carried on in his property with his knowledge. Such is the purpose and object of this action, and it is not affected by the judgment rendered in his favor -in the former action.

We are unable to accept the construction of the defendant in error, that the provisions of Sec. 4275 were designed for the benefit of the loser, where under Sec. 4270 he recovers a judgment. So far as natural justice is concerned it has little to do with a recovery under any of these sections.' The primary object of the legislature in their enactment was, not to do justice between the parties, but, in the interest of good morals, to discourage the vice of gambling; and it is quite as consistent with this policy to make a judgment recovered by a third person under section 4273, a lien on the property where the gaming was carried on in which the money was lost, as a judgment in favor of the loser under section 4270 where, in either case, the gaming was carried on with the knowledge of the owner.

Reversed and remanded for further proceedings.


author: Shauck, O. J.

text:
    Drummond et al. v. Henderson.

      Action again justice of peace — To recover damages for commitment to jail without plea of guilty — Grotmds of injury to reputation of plaintiff — Defendant may prove bad repute of plaintiff, when.

    In an action against a justice of the peace to recover damages for committing the plaintiff to jail without a plea of guilty, thus .exceeding his jurisdiction, injury to reputation being specially alleged as one of the grounds of recovery, it is competent for the defendant to prove that the plaintiff was at the time the cause of action arose of bad repute for honesty, the effect of the evidence being limited to the purpose of defeating or , reducing a recovery on that particular ground.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Greene county.
    The defendant in error brought suit in the court of common pleas against Drummond, who is a justice of the peace and the sureties upon his official bond. The plaintiff alleged that Drummond maliciously procured, one Garrison to file an affidavit charging that the plaintiff had, in violation of law, placed the carcasses of dead animals upon a public highway and permitted them to remain there for several hours contrary to the statute, and issued a warrant thereon; and that upon the plaintiff’s being brought before him under arrest, and upon his refusal to enter a plea of guilty, the magistrate, ex-seeding Ms jurisdiction, adjudged him to pay a fine of ten dollars and the costs of prosecution, and ordered him to stand committed to the jail of the county until he should pay said fine and costs, and that in consequence of his inability to make such payment he was under such order confined in the jail of the county. He alleged general and special damages. His allegations of special damages included the following: That he (the plaintiff) “has been greatly damaged in his good name and reputation where he lives by reason of said imprisonment.”
    The answer alleged that the plaintiff upon his arraignment upon the charge made in the affidavit had entered a plea of guilty thereto, and that if the justice had exceeded his jurisdiction it was because of an error of judgment. It also alleged with particularity the truth of the charge contained in the affidavit.
    Upon the trial the court of common pleas, against the objection of the plaintiff, admitted evidence offered by the defendants to show that before and at the time of the arrest the plaintiff’s reputation for honesty -was bad. The effect of this evidence was limited by the following instruction given to the jury:
    “Now if the jury should find from the evidence that no material damages accrued to plaintiff’s reputation on account of such imprisonment, yet from that fact, if it be such, the jury are not to infer that he has not suffered damages on the other two grounds mentioned, and although the jury may not be disposed to give him damages on account of a blemished reputation, by reason of the false imprisonment claimed in the petition and amended petition, yet he should be awarded such damages on the other two grounds as the jury may think him entitled to, from the evidence in the case.”
    A verdict was returned in favor of the plaintiff assessing his damages at one dollar. Plaintiff filed a motion for a new trial upon numerous grounds, in-eluding the admission of the evidence respecting his reputation. The motion was overruled and judgment was entered upon the verdict. The plaintiff then filed a petition in error in the circuit court, where the judgment was reversed because of the admission of said evidence.

      HoYace L. Smith, for plaintiffs in error.

      J. A. Cook, for defendant in error.
   Shauck, O. J.

The conclusion of the circuit court is said to be justified by Comer v. Knowles, 17 Kas., 436. With respect to that case it is to be observed that it is not decisive of anything except the particular case, since the judgment of the trial court was affirmed because of an equal division of the judges of the supreme court; and, further, that the question presented here was not involved in that case nor considered by the court. The two questions there considered were: First, may the defendant in an action of this character, for the purpose of mitigating damages, introduce evidence to show that in committing the act complained of he acted in good faith and without malice? Second, may the plaintiff in an action of this character recover for an injury to reputation without pleading facts showing-pecuniary loss in consequence of injury to his reputation?

If injury to the reputation of the defendant in error here would not otherwise have been a ground of recovery, it became a ground by reason of the averments of his petition in that regard. In the absence of evidence upon the subject the jury would have been left to the legal presumption that his reputation was as good as that of men in general, and their verdict would, in that regard, have awarded him such damages as a like imprisonment would have made proper in the case of one of good reputation. It would seem reasonable that whatever is the subject of an injury for which, a recovery in damages is sought should be the subject of inquiry in the ascertainment of such damages. The evidence admitted by the trial court has been held competent in many similar cases. Bacon v. Towne et al., 4 Cush., 217; Fitzgibbon v. Brown, 43 Me., 189; Gregory v. Chambers, 78 Mo., 294. It will not follow that a plaintiff, because his reputation is bad, will be denied a recovery'for all the damages which he really sustained in consequence of a trespass of this nature. The legitimate effect of such evidence is to deny him a recovery on account of an injury which he has specially alleged but did not sustain. The effect of the evidence was properly and discreetly limited by the instruction given by the trial judge.

Judgment of the circuit court re-v&rsed and that of the common pleas affirmed.