source: Caselaw Access Project

author: White, J.

license: Public Domain

text:
    Railway Co. v. Jewett.
    1. A railroad company may be sued in any county through or into which its road passes, without regard to the nature of the cause of action.
    2. The appointment of a receiver to take from the defendant the possession of his property, cannot be lawfully made without notice, unless the delay required to give such notice will result in irreparable loss.
    3. In an action to prevent the consolidation of railroad companies, the election of directors for the new company, at a meeting of the stockholders held under section 3383 of the Revised Statutes, will not justify such an appointment against either of the companies, on the ground that part of the stockholders participating in the meeting have been inhibited from doing so by injunction.
    Error to tbe Court of Common Pleas of Franklin County.
    The original petition was filed in the court of common pleas of Franklin county, on October 19, 1881, by Hugh J. Jewett and R. Suydam Grant, who sue in their own behalf as stockholders in the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, and in behalf of other stockholders who might come in and contribute to the expenses of the action. The defendants are the said railway company, the Cincinnati, Hamilton and Dayton Railroad Company, J. H. Devereux, George H. Russellj F. H. Short and Stevenson Burke.
    The petition is founded upon the attempted consolidation of the two companies named, and sets out the steps taken to effect such consolidation. The material facts are found stated in the case of State ex rel. Attorney-General v. Vanderbilt, decided at this term, ante.

      The case last named was instituted after the bringing of this action, and it was therein adjudged that the attempted consolidations of said corporations was unauthorized and invalid.
    The object of the petition in this case was to prevent the election of a board of directors of the consolidated company, known as the Ohio Railway Company, at a meeting of the stockholders to be held at Cleveland on October 20, 1881. The petition avers that Devereux is a stockholder, director and the president of both companies, and that, said Burke is vice-president of the first-named company, that said Russell is the secretary of the first named company, and said Short is secretary of the last named company.
    The petition also contains the following averment: “ That not only is the said pretended consolidation illegal by reason of the matters and things hereinbefore set forth, but also the interests of these plaintiffs, as stockholders aforesaid in the said defendant, the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, will be greatly prejudiced and irreparably injured by reason of the furthering and completing of said pretended consolidation. That under the said agree ment of consolidation, it is intended to consolidate or unite the two corporations defendant into one pretended corporation, with a single management of the said corporations, to keep but one set of books of the earnings of the two lines of railway and thereby to confuse the earnings and expenses, respectively, of the said corporations defendant, and to make the property and earnings of each of the said corporations liable for tin?' debts and obligations of the other’. That the debts and obligations of the defendant, the Cincinnati, Hamilton, and Dayton Railroad Company, are actually much greater than those of the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, and that it will be greatly to the damage of these plaintiffs to have the stock of the two corporations consolidated, and the earnings of the properties of the respective corporations amalgamated and confused.” And asks that the said corporations defendant, and their respective directors, stockholders and officers, be forever enjoined and restrained from doing any act toward the completion of the said pretended consolidation, or any consolidation of tlie said corporations defendant, or for the election of any board of directors of the said pretended Ohio Railway Company, and from surrendering the possession of the railways and properties, books, papers and records of the said corporations, or either of them, to the said alleged Ohio Railway Company, or to any board of directors or officers pretending or claiming to represent the same.
    And the defendants, J. II. Devereux, Stevenson Burke, George II. Russell and F. H. Short be, and each of the same be forever enjoined and restrained from in any way furthering, aiding, promoting or participating in the said meetings, called as aforesaid. An exporte temporary injunction was allowed, as prayed'for, at the time of filing the petition. And on the same day service was made on Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, at Franklin county, and on the other defendants on the morning of the 20th of October in Cuyahoga county, before the meeting for the election of directors.
    On October 22, 1881, the plaintiffs, by leave of the court, filed a supplemental petition, in which it was stated in substance that notwithstanding the injunction and service thereof, the meeting for the election of directors of the Ohio Railway Company was held at tlie time and place appointed for that purpose in which the said Devereux, Burke, Russell and Shori participated. Tjiat all the stockholders assembled at said meeting were notified of the filing of said petition and the allowance of said injunction before proceeding to such election. That directors were elected at such meeting for the Ohio Railway Company whose names are set forth and who are asked to be made defendants.
    It is also averred: “ that said pretended directors and officers of said pretended new corporation intend to, and unless stopped by the effective intervention of this court, will take control and management of the property, franchises, and assets of every kind, of the two railroad companies, defendants in this case, in the name of said pretended new corporation, and will abandon and cause to be dissolved the two railway companies, defendants in this case. Plaintiffs say that by reason of facts stated in the original petition, the said two railroad companies, defendants, have not been consolidated, nor can they be ; that the meeting stated in the original petition, wherein their stockholders voted to ratify the agreement for consolidation, and the votes there given, as well as the votes cast at the meeting on October 20, 1881, at Cleveland, hereinbefore described, were without legal validity or effect, either to dissolve the old companies or to create a new one.” ,
    The appointment of a receiver was prayed for, to take possession and control of the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company’s road, and of all Other roads leased or held by it, and of all of its property of every kind and nature whatsoever, and to hold and operate said roads under the direction of the court until further ordered; and for such orders of injunction as would enable the receiver to fulfill the duties of his appointment.
    At the time of the filing of the supplemental petition an appointment ex parte of a receiver was made as prayed for, and such orders entered as would enable him to take control of all the property and rights of the said company, and to fully perform the duties of his appointment.
    The receiver gave bond and Avas duly qualified as required by the court.
    On application to this court leave was granted to the plaintiffs in error to file the present petition i£ error to reverse the order appointing the receiver, and all orders founded upon and in execution of said appointment; and the execution of the duties of said appointment, and of said orders, were stayed until the petition in error could be heard.
    Harrison, Olds & Marsh, for plaintiff in error:
    The court had no jurisdiction of the persons named as defendants in either the original or supplemental petition. The action Avas not “rightly brought” in the county of Franklin, according to the provisions of cli. 5, div. 2, tit. I. Rev. St. It was one which “ must be brought in the county in which a defendant resides or may be summoned.” Section 5031. None of tbe defendants reside in the county of EranMin, and none of them could be summoned therein. True, two summonses were issued against the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, directed to the sheriff of Franklin county ; one of which was returned served upon “ a regular freight agent,” and the other upon “ an agent ” of the company. Rut if, when the action was commenced, said company was still a railroad corporation for all purposes (which we controvert), and its road passed into Franklin county, and it had a “ a regular freight agent ” therein, upon whom summons was served, these facts did not entitle the plaintiffs to bring their action in that, county, for two reasons : 1. Section 5026 provides that “ an action other than one of those mentioned in the first four sections of this chapter, [of which the action below was not one], against a corporation created under the laws of this State, may be brought in the county in which 'such corporation is situate, or has or had its principal office or place of business.” Section 5027 qualifies the foregoing general provision of section 5026, to a certain extent only; that is to say, it authorizes an action to be brought against a railroad company “ in any county through or into which such road passes,” only when the action is “for an injury to the persons or property upon the road or line, or upon a liability as carrier.” This qualification was intended for the convenience and protection of persons in whose favor rights of action accrue against a railroad company in operating its road and carrying on its business. It certainly was not intended to authorize an action to be brought jointly against natural persons and such company, on other causes of action than those enumerated, in any other county than that in which such other person “resides or may be summoned” (section 5031), or in the county where the company resides, and service can be made on it under section 5026. Sections 5027 and 5031 must be construed together. When an action is brought against two or more defendants, and neither of them reside in the county in which the action is brought, and the summons cannot be legally served upon either of them in that county, the court does not acquire jurisdiction over either of the defendants. The court had no jurisdiction to make the order appointing a receiver, until all persons who would be directly and legally affected by it were before the court. But the order in question was made before the persons who were made defendants to the supplemental petition were served with process, and even before process was issued against them. As to them at least, the action was not then actually pending. Robinson v. Orr, 16 Ohio St. 284, 288; Bennett v. Williams, 5 Ohio, 461.
    The order in question is void also for the reason that no notice was given to the defendants, or either of them, that an application would be made for the appointment of a receiver. The order was made before any of the parties were required to appear in an action; and before any process at all had been issued against some of them. This precise question has not been, so far as we are aware, decided by this court. But the court has recognized and established principles which are decisive of the point. Lessee of Patterson v. Prather, 11 Ohio, 35. The following cases decide that such a proceeding as that now under review is not within the judicial power of any one, and is a pure usurpation. People v. Simonson, 10 Mich. 201; Sailing v. Johnson, 25 Mich. 489 ; People ex rel. v. Judge of St. Clair, 31 Mich. 456 ; Barry v. Briggs, 22 Mich. 456; Gravenstein's Appeal, 49 Penn. St. 310; Whitehead v. Wooten, 43 Miss. 523 ; Hyslop v. Hoppock, 5 Ben. 447. A motion for the appointment of a receiver is special, and, therefore, notice of it must be given to all necessary and interested parties. Tibbals v. Sargeant, 14 N. J. Eq. 449 ; 2 Brown Ch. Pr. 883; Buxton v. Moukhouse, Coop. 41; Devoe v. Ithaca, &c. R. R. Co., 5 Paige, 521; 2 Daniell Ch. Pr. 1735 ; High on Receivers, § 111. The code has not altered the practice' in the appointment of receivers so far as notice to the parties to be affected is concerned. The appointment must still be made according to -the principles and practice of courts of chancery, as established and existing when the code took effect. So held under the New York code. Kemp v. Harding, 4 How. Pr. 178. The usages of courts of equity, both as to the manner of appointing and discharging a receiver, where it is not otherwise provided by statute, are applicable to cases arising under the code. C., S. & C. R. R. Co. v. Sloan, 31 Ohio St. 1. It is apparent that the court below made the order appointing a receiver solely because it was supposed that the original restraining order had been violated by the stockholders of the Ohio Railway Company holding an election for directors thereof. And this, too, when the directors of the C., C., C. & I. Ry. Co. were not defendants in the action; and when it is not even alleged, much less made to appear that they did anything in disobedience of the original restraining order, or that they intended or contemplated surrendering the possession, management and control of the road until the controverted right of the Ohio Railway Company should be judicially determined. This latter fact, of itself, shows that the order of the court below was wholly unauthorized.

      Converse, Booth & Keating, for defendant in error:
    I. On October 22, the date of the orders complained of, there was an action pending. The plaintiffs had commenced their action by filing a petition, and causing writs of summons to be issued thereon, which were duly served on the several defendants named in the petition, on the 19 th and 20th of October. The provisions of the code, relating to the commencement of civil actions, had been fully complied with. Rev. Stat. §§ 4987, 5035, 5037, 5038, 5040, 5044, 5577. The statutory provisions now in force, determining when personal actions may be brought against domestic corporations are Rev. Stat. §§ 5026, 5027.
    II. "Was the court warranted in appointing the receiver, and allowing the restraining order of October 22, without notice ? 1. Notice of the application for an injunction is not required in this state; on the contrary, the power to allow an order of injunction without notice to adverse parties is clearly recognized by our statute law. Rev. Stat. §§ 5574, 5575, 5578; High on Injunctions (2 ed.) §§ 1575, 1578, 1579. 2. Notice of the application for the appointment of a receiver is generally required, but courts may, in their discretion, in cases of grave emergency and under circumstances rendering such a summary proceeding necessary, make the appointment without notice. High on Receivers, §§ 106, 111; People v. Norton, 1 Paige, 17; Gibson v. Martin, 8 Paige, 481; Verplanck v. Ins. Co., 2 Paige, 438; Johns v. Johns, 23 Ga. 31. On October 19, tbe court of common pleas rightly held that the Ohio Railway Company had not yet succeeded to the rights, privileges and franchises of the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, and the Cincinnati, Hamilton and Dayton Railway Company. Railroad Co. v. Brown, 26 Ohio St. 224, 239. Rut on October 22, on the showing made in the affidavits and supplemental petition, it clearly appeared that the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company no longer claimed the right to control its large property interests, assets and valuable franchises, and was about to surrender possession thereof to the pretended new company. It would not have been reasonable in such an emergency to require the j>laintiffs below to notify the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, a corporation that, through its officers and agents, denied their own existence, of the application for the appointment of a receiver. The doctrine is well settled that a receiver may be appointed without notice, when the party to be affected thereby is beyond the jurisdiction of the court, or in case of great emergency, even if the adverse party be within the jurisdiction of the court. The showing made to the court of common pleas, on October 22, was sufficient to justify that court in appointing a receiver, without notice to the company which had attempted to commit suicide, and, through its officers, claimed that its purpose had been accomplished. A strong probability, amounting almost to a certainty, that, unless a receiver be appointed, a corporation will, within a few hours, in violation of law, surrender complete possession and control of property worth millions of dollars, is, we submit, a “ grave emergency.” If the emergency was, as we claim, sufficient to justify the appointment without notice to the corporation itself, then it was not error to mate .such appointment without notice to the other parties defendant.
    III. Did the petition and supplemental petition state facts sufficient to authorize the appointment of a Receiver % The plaintiffs below claimed relief, by injunction, and the appointment of a receiver, on the ground that the proposed consolidation was not authorized by law, and, if consummated, would cause irreparable injury to the stockholders of the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company. On the showing made in the common pleas, the plaintiffs below, were entitled to the appointment of a receiver. The corporation had ceased to act. The president and chief officers and a majority of the stockholders assumed that the property and franchises of the company had vested in another corporation and were proceeding, without authority of law and in violation of the order of the court, to surrender to strangers the property of the defendant company, to the irreparable injury of its stockholders. It is a well established rule of law that where a corporation ceases to act as such, and there are no persons authorized to conduct its affairs and preserve its property, a receiver will be appointed for that purpose; and on reason the duty of the court to appoint a receiver is even more imperative where a corporation ceases to act as such, and its officers, who are charged with the duty of conducting its affairs and preserving its property, betray their trust and neglect and refuse to perform their duty. And a court will act more promptly in granting such relief when the adverse parties are in contempt of court for violating its orders. High on Receivers, §§ 15, 366; 2 Redfield on Railways, 360, 361; Conro v. Gray, 4 How. Pr. 166; Penn v. Whitehead, 12 Gratt. 74-83; Stevenson v. Davidson, 18 Watt, 819.
    IY. Did the petition and supplemental petition state facts sufficient to authorize the allowance of the restraining order of October 22? The order allowed against the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, its trustees, directors, officers, managers, attorneys, agents, servants and employes, restraining them from collecting or paying out moneys, and from delivering the property of the company to any person except the receiver, was a proper order to be made in connection with the appointment of the receiver. The facts were such as to justify a court of equity in interfering, by injunction, to protect the interests of complaining stockholders. The relief granted was clearly within the doctrine stated in the following authorities: Pierce on Railways, 73, 520; High on Injunctions (2 ed.), §§ 605, 1203, 1207 ; Ang. & Ames on Corp. § 391; Ward v. Society of Attys., 1 Collyier, 370; Wright v. Oroville, 40 Cal. 20; Rev. Stats. of Ohio, § 5006; Green’s Brice’s Ultra Vires, 653.

      E. A. Ferguson, also for defendant in error.
   White, J.

The only question before us for determination relates to the order appointing the receiver, and the orders made in aid of such appointment.

Whether the service of process upon the original defendants, Devereux, Burke, Short and Russell, in Cuyahoga county, was •effective to subject them to the jurisdiction of the court issuing the process, is not before us for consideration; that branch of the case is still in the court of common pleas. The only parties interested in the question of the appointment of the receiver, are the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, and the original plaintiffs Jewett and Grant. The company, for any cause of action against it, was brought into court under the last clause of section 5027 of the Revised Statutes, which provides, that “ an action against a railroad company may be brought in any county through or into which such road or -line passes.”

The meeting held at Cleveland was a meeting of the stockholders only. The corporations had no corporate duty to perform at the meeting. The object of the meeting was to comply with section 3383 of the Revised Statutes. The section provides for a meeting of the stockholders of the original companies, at a time and place to be fixed by themselves, to elect directors and other officers of the new company formed by the consolidation; and it is declared that the election shall be conducted in such a manner as may be prescribed by the stockholders at such meeting.”

The ground of action stated in the petition was the invalidity of the consolidation. This invalidity arose from the incapacity of the corporations, under the statute, to effect such consolidation. There being no power to consolidate, the original corporations continued to exist in their integrity, with all their rights of property and franchises. As such corporations they were respectively enjoined, under the original petition, “ from surrendering the possession of the railways and properties, books, papers and records of the said corporations, or either of them, to the said alleged Ohio Railway Company, or to any board of directors or officers pretending or claiming to represent the same.”

The alleged violation at the meeting, of the injunction, by the defendants, Deverenx, Burke, Short and Russell, did not constitute ground against the corporation of which they were stockholders, for the appointment of the receiver; and it was only in the capacity of stockholders that they acted or had any authority to act at the meeting.

It does not appear who constituted the other directors of, the defendant company; nor is it averred that the company or any of the directors were intending, in violation of the injunction against the company, to surrender or transfer its property to the alleged Ohio Railway Company, its directors or officers. No such transfer 'could be effected by operation of the statute; for the consolidation was not authorized by the statute.

There was no obstacle to giving notice to the company before acting on the appointment of a receiver. No fraud or insolvency was charged against any of the parties; nor that the property of the company was in danger of removal beyond the jurisdiction of the court, or of otherwise being lost. The controversy was solely as to the effect of the attempted consolidation.

Under the circumstances of the case, the appointment of the receiver was an unwarranted exercise of judicial power, which it is the duty of this court to reverse and set aside. Railroad Co. v. Sloan, 31 Ohio St. 15; Varplank v. Insurance Co., 2 Paige, 438.

Judgment accordingly.


author: By the Court.

text:
    McLain v. Simington.
    A. assigned all his property to M. for the benefit of his creditors, having previously executed a mortgage on certain real estate to B., which real estate and certain personal property, the sherifE, at the suit of S., Lad seized in attachment, and was in possession of, at the date of the assignment. By agreement between the parties, M. converted the attached property into money, and held the proceeds to await the result of the attachment suit. The real estate was sold for less than the mortgage debt, and the attached personalty for less than the judgment subsequently recovered by S. In his account in the probate court, M. charged himself with the proceeds of the sale of the attached prop erty, and also other funds received by him as assignee; and credited himself with expenses paid in preserving and selling the attached property, and in resisting the attachment suit.

      Held, 1. It was proper for the assignee to account, in the probate court, for all moneys which came into his hands, as well the proceeds of tho attached property, as other funds.
    2. As against the proceeds of the attached property, expenses incurred in resisting the attachment suit were not iwoper allowances.
    3. Whether such expenses should be allowed the assignee out of other funds in his hands, depends on the fact whether they were reasonably and in good faith incurred for the benefit of the general creditors.
    4 The expenses in preserving and selling the attached property should be paid out of the proceeds of such property.
    5. The expenses (including commissions), of selling the mortgaged property should be paid out of the proceeds of the real estate so mortgaged.
    Error to the District Court of Morrow County.
    The questions in this case arise on exceptions to the report, of the assignee, filed in' the probate court.
    In July, 1877, Isaac T. McLain assigned all his property to plaintiff in error for the benefit of creditors, to be administered under the statute in such case made and provided.
    Previous to the assignment the assignor placed a mortgage for $500, on certain real estate in favor of William McLain; and B. W. Simington had seized the same parcel of real estate and certain personal property, including a board yard, in attachment, and the sheriff, by virtue of the writ of attachment, was in possession of the property seized at the date of the assignment.
    By a written contract between the attachment creditor, the assignee and assignor, the attached property was delivered to the assignee to be converted by him into money, and the proceeds held to await the event of the attachment suit. This suit was determined in favor of the attaching creditor. The attached property was sold by the assignee. The real estate was sold for less than the mortgage debt, and the balance of the attached property .for loss than the judgment recovered by the attaching creditor.
    In accounting in the probate court, the assignee charged himself with the proceeds of the sale of all the attached property, and also with other funds which came into his hands as assignee separately. Tie credited himself with certain expenses paid in preserving and selling the attached property, also certain expenses incurred and paid in defending and resisting the attachment suit. Exceptions were filed by the attaching creditor and other creditors, and on appeal to the court of common pleas, the exception to the matters of credit above-stated were sustained. In the district court, the judgment of the common pleas was affirmed.

      A. K. & J. C. Dunn and F. K. Dunn, for plaintiff in error.

      Dalrymple & Powell, for defendant in error.
   By the Court.

It was proper for the assignee to account in the probate court for all moneys which came into his hands, as well the proceeds of the attached property, as other funds.

As against the proceeds of the attached property, expenses incurred in resisting the attachment suit were not proper allowances.

"Whether such expenses should be allowed the assignee out of other funds in his hands, depends on the fact whether they wore reasonably and in good faith incurred for the benefit of the general creditors.

The expenses in preserving and selling the attached property should be paid out of the proceeds of such property.

The expenses (including commissions), of selling the mortgaged property should be paid out of the proceeds of the real estate so mortgaged.

Judgment reversed cmd cause remanded to court of common pleas.


author: Longworth, J.

text:
    Upthegrove v. The State.
    In a trial upon an indictment charging the prisoner with shooting at the prosecuting witness, with malicious intent to kill, where evidence has been introduced tending to show that the act charged was committed by the accused at a time when he was being actually assaulted by the prosecuting witness with a dangerous weapon, it is competent for the defense to prove that the general reputation of the prosecuting witness was that of a violent and dangerous man, and that such general reputation was known to the accused at the time of the assault, as tending to support the plea of self-defense.
    Error to the Court of Common Pleas of Paulding County.
    At the October term, 1881, of the court of common pleas of Paulding county, the plaintiff in error was tried upon an indictment for shooting at one Lewis Talbot with intent to kill.
    The state having rested its case, evidence was introduced by the accused tending to show that, at the time charged, Talbot attacked him and knocked him down with a club, and was-about to strike him again. That he, the accused, fearing death or great bodily harm at the hands of his assailant, shot at him, with the sole purpose of self-defense and without malicious intent. At this stage of the case the accused proposed to prove, by a competent witness, that the general reputation of Talbot for peace and quietness was bad, and that his character was that of a dangerous and violent man, and that this was known to the accused at the time. To the introduction of this testimony objection was made and sustained by the court, and exception was noted. By the present proceeding in error this ruling of the court is now before us for review.

      I. N. Alexander and De Witt & Freshwater, for plaintiff in error.

      Geo. K. Nash, for defendant in error.
   Longworth, J.

As a general rule, in trials for homicide or felonious assault the character of the person assaulted or killed cannot be shown; for the reason that the law holds it to be as criminal to assault abad and violent man as a good and peaceable one. But to this rule there is an exception in cases where the plea is self-defense and there is evidence tending to show that the actual or attempted killing took place while the accused was being actually assaulted. In such case the intent being an essential element of the crime, evidence is competent to show what the accused person really believed, at the time, and what reasons he had for entertaining such belief; and it will not affect the competency of the evidence that such belief turns out to have been a mistaken one. It is no defense to a charge of this character to show that the deceased or prosecuting witness was a wicked or violent man, but the fact that the accused believed him to be so is calculated to throw light on his actual intent as rendering his act criminal or excusable. A club may or may not be a deadly instrument, and I can well understand that, when in the hands of a man known to be of blood thirsty disposition, a reasonable ground to fear great bodily harm might exist, whereas, when used under the same circumstances by an irritated, but ordinarily peaceable man, no such apprehension would be justifiable.

The rule allowing evidence of character or general reputation in such eases, brought home to the knowledge of the prisoner, is founded on the clearest principles of reason and common sense, and is amply sustained by authority.

In 1 Greenl. Ev. § 101, the learned author lays down the broad principle as follows :—“ Thus, when the question is whether the party acted prudently, wisely or in good faith, the information on which he acted, whether true or false, is original and material evidence.” . . “Upon the same principle it is considered that evidence of general reputation, reputed ownership, public rumor, general notoriety and the like, though composed of the speech of third persons, not under oath, is original evidence, and not hearsay.”

To illustrate the proposition he cites with approval the case of People v. Shed, 8 Cal. 538, in which it was held that when the accused claimed to have procured a pistol to defend himself against the attack of another; upon the ground of certain information received from others, such information became an original fact proper to be proved in the case.

It is said in 2 Bishop Crim. Proced. § 614: Though, as a general rule, even on an indictment for murder, the character of the deceased as being quarrelsome, and the like, can have no effect, however ill it may be, to excuse the act of the defendant, and, therefore, it should not be received in evidence when brought forward by him ; yet if, in the particular case as presented before the court—as, for instance, when there is a question whether the homicide was committed from malice or was prompted by the instinct of self-preservation, and there is no direct testimony as to what was done, blit the whole or the principal evidence is circumstantial,—then it may be proper to permit the defendant to give in evidence what he knew of the character of the person whose life he took; for so an act which would otherwise seem unjustifiable or premeditatedly malicious might appear more probably to have been done in self-defense or in a quarrel.”

The subject is carefully discussed in Wharton Crim. Ev. §§ 6S-84, inclusive; see, also, 14 Am. Law Review, 579.

The rule as announced by us was declared to be the law in the following cases, in most of which the question arose in substantially the same manner as in the case at bar: Nichols v. People, 30 Hun, 165; Stephens v. State, 1 Tex. Ap. 591; People v. Murray, 10 Cal. 309; People v. Anderson, 39 Ibid. 703; State v. Bryant, 55 Mo. 75 ; State v. Matthews, 78 N. C. 523; Eiland v. State, 52 Ala. 323 ; Monroe v. State, 5 Ga. 85 ; Horbach v. State, 43 Tex. 242; People v. Lamb, 2 Keyes, 371.

As far as I am aware the doctrine has never been denied except in Commonwealth v. York, 9 Met. 93, and in Commonwealth v. Hilliard, 2 Gray, 294, in which evidence of reputa* tion was not admitted under a like state of facts. These decisions, although entitled to the greatest respect on account of the eminence of the distinguished judges who announced them, are at variance with the whole current of decision in other states and with the views of the text writers who have treated of the subject; and do not appear to us to be supported by the sound common sense logic which underlies the whole law of evidence.

Judgment reversed.'


author: MoIlvaine, J. Okey, C. J.,

text:
    Railway Company v. Ranney.
    1. Where, by the rules of a railroad company, brakemen on a train of cars are placed under the control and direction of the conductor, the relation of superior and subordinate, as between the engineer and a brakeman, is not created by a rule of the company requiring the engineer to give certain signals for setting or relieving brakes, which also requires brakemen to work the brakes accordingly.
    2. In such case, the engineer and brakeman are fellow-servants in a common employment; and the company is not liable to either for an injury resulting from the negligence of the other. Sailway v. Lewis, 33 Ohio St. 196,—approved.
    Error to the District Court of Eranklin County.
    The original action was brought by defendant in error against the Pittsburgh, Cincinnati & St. Louis Railway Company, plaintiff in error, to recover damages for personal injuries resulting from the carelessness of defendant’s engineer, under the following circumstances:
    On August 2, 1871, the plaintiff below was employed as a brakeman on a train of freight cars of the defendant, running from Columbus, Ohio, to Dennison, Ohio, under the management of a conductor, an engineer, a fireman and two brakemen. On approaching Pataskala station, the train was moving at the speed of about fifteen miles per hour when a flag signal from the station was given to slow the train for orders, whereupon the engineer, by a single blast of the locomotive whistle, signalized the application of brakes by the brakemen, and thereby the speed of the train was reduced to six or eight miles per hour when opposite the station-house. While moving at this rate the engineer received dispatches 'from the station agent, and also orders to proceed without stopping at the station, whereupon, by two blasts of the whistle the engineer signaled the removal of the brakes by the brakemen. While the plaintiff, in obedience to the signal, was engaged in removing brakes, and before a reasonable time for the removal had elapsed, the engineer applied steam to the engine so violently as to break and separate the train at the coupling of the cars where the plaintiff was engaged in removing brakes, whereby the plaintiff was thrown from his feet and fell between the cars, and was thereby very seriously injured, so that it became necessary to amputate his left leg above the knee and three toes from the right foot.
    In stating his cause of action, the plaintiff alleged in the petition, among other things, the following:
    “This plaintiff states that it then and there became the duty of this plaintiff, when on said train of cars as brakeman as aforesaid, to obey and carry out in a prompt and reasonable manner all orders or commands given to him in any manner by the engineer, then and there handling, operating and controlling the locomotive attached to said train of cars, and hauling the saíne from Columbus to Dennison, as aforesaid, in reference to putting on or letting off the brakes attached to the cars, making up and forming said train of cars so hauled and moved by said locomotive, and that in said employment of brakeman on said train he was under the command and order of said engineer, and therefore compelled to obey the orders and commands given by said engineer to him in reference to using said brakes in the starting or stopping said train of cars, and as above stated in said operating, hauling, and moving said locomotive and train of cars attached thereto, said engineer was in all respects the superior of the plaintiff, and it was his duty to give orders and commands to plaintiff when on said train of cars, in reference to the time and place, and under what circumstances said brakes should be applied to the stopping or impeding the speed of said train, and when the same should be leftff o or loosened in order that the train might be enabled to move at a greater rate of speed.”
    The plaintiff further says that said injuries were so inflicted iipon him without any fault, neglect, or carelessness upon his part, and whilst he was in the proper discharge of his duties as a brakeman on said train of cars aforesaid, in an ordinary, careful and prudent manner, and plaintiff avers that said injuries were so inflicted upon him, as hereinbefore stated, by reason of the negligence, default, and want of proper care and caution, and by reason of the rashness, negligence and carelessness of the said engineer, who had charge of the said locomotive, its movements, management and control as aforesaid, and who gave said order and commands to plaintiff; and the said injuries were caused by the said engineer aforesaid, by his sudden and rapid starting of said locomotive and cars in motion, without signal or warning to plaintiff or other employees, and without the said engineer waiting sufficient or reasonable time to .enable plaintiff to obey and carry out his said order or command to let off or loosen brakes as aforesaid ; in all which, said engineer was guilty of the most grossly negligent, improper, rash and careless conduct, which, .as aforesaid, was the sole cause of the infliction of said injuries upon plaintiff, hereinbefore stated.
    The defendant, by its answer, denied that the engineer was guilty of carelessness or negligence, as chai'ged in the petition, and also, “ that in virtue of said employment he (plaintiff) thereby became, and was, in fact, subject to the orders and control and direction of the engineer of said freight train, or that said engineer thereby became, and was in fact, in all respects his superior upon said train, whose orders and commands he was in all respects bound to obey. On the contrary thereof, the defendant avers that said train was on said day under the charge and control of a conductor, who was, as such conductor, the superior of both said engineer and brakeman, and whose orders and commands both said engineer and brakeman were alike bound to obey in said common service and in subordination to said superior servant of said defendant.”
    To this answer the plaintiff replied as follows:—“ That this plaintiff admits that there was'on and connected with said train of ears mentioned in plaintiff’s petition, a conductor who was the superior of plaintiff, and in reference to the time of starting said train at stations where it stopped, was the superior of said engineer, but plaintiff says that in all respects as to the starting, stopping, controlling and movements of said engine and the cars attached thereto, both said engineer and conductor were, in all respects, the superiors of plaintiff, and both were the responsible parties in charge of said train as to said plaintiff and said railway company.”
    On the trial in the common pleas, a verdict and judgment were rendered for the plaintiff. A bill of exceptions containing all the testimony and the charge of the court was made part of the record. The judgment of the common pleas was affirmed in the district court, and this proceeding is prosecuted by the railroad company to reverse both judgments.

      C. N. Olds and Lorenzo English, for plaintiff in error:

      Railway Co. v. Lewis, 33 Ohio St. 196; Railroad Co. v. Stephens, 20 Ohio, 415 ; Wood on M. & S. 809, 821, 847, 848, 883; McAndrews v. Burns, 5 Reporter, 120; Valetz v. Railroad Co., 5 Reporter, 127 ; that engineers and brakemen are in the same class of service, see Louisville, &c. R. R. Co. v. Robinson, 4 Bush (Ky.), 507; Chamberlain v. R. R. Co., 11 Wis. 238; Chicago, &c. R. R. Co. v. Murphy, 53 Ill. 336; Whalan v. R. R. Co., 8 Ohio St. 249.

      W. B. Page and T. E. Powell, for defendant in error:
    That an engineer may be the superior of other employees was decided in Railway Co. v. Collins, 2 Duvall, 114, and in an article in 5 Am. Law Reg. 272, Redfield commends this case in favorable terms. This principle has been substantially affirmed by this court in a late case, in 36 Ohio St. 221, L. S. & M. S. R. R. Co. v. Lavally. It was there held that Lavally “ was the subordinate of the foreman, in respect to the work in which he was engaged at the time he was injured; ” and it would have made no difference in his right to recover, if he had been originally employed by the company to work upon ears in a shop under another foreman, or had even been employed to brake in the yard, provided that, at the time he was injured, he was working under the direction and authority of the person whose negligence caused the injury. •
   MoIlvaine, J.

The principles of law in relation to the liability of a master for an injury to his servant while engaged in the performance of duties under his employment, have been so frequently considered and declared by this court, and upon such varied statements of fact, that one might be justified in assuming that the law upon this subject, in all its bearings, Iras been fully settled. The respective rights and duties of employer and employee, sound in contract. The employer implicitly engages to use reasonable care and diligence to secure the safety of the employee, and among other things, to exercise reasonable care in the selection of prudent fellow-servants. lie also engages that every one placed in authority over tire servant, with power to control and direct him in the performance of his duties, will exercise reasonable care in providing for his safety, whether such superior be a fellow-servant or not, in the ordinary sense. The superior, in his relation to the subordinate servant, is, in the language of Judge Day, in Railroad Co. v. Lewis, 33 Ohio St. 196, the alter ego of the master. This doctrine, which imputes to the master the negligence of a servant to whom he has delegated authority over other servants, has been firmly ingrafted in the jurisprudence of this state ever since the case of Little Miami R. R. Co. v. Stephens, 20 Ohio, 416. See also C. C. & C. R. R. Co. v. Keary, 3 Ohio St. 201; and L. S. & M. S. R. R. Co. v. Lavally, 36 Ohio St. 221, and cases therein cited.

On the other hand, the servant assumes all ordinary risks of the employment against which ordinary care on the part of the master does not provide: and among the risks thus assumed by the servant, are those which may result from the carelessness or negligence of fellow-servants. Indeed, in the case before us, it is not claimed by the defendant in error -that the railroad company should be held liable, if it -were free from negligence, actual or imputed; and it is conceded, that such would be the case, if the engineer and himself were mere fellow-servants in a common employment. Nor is it denied by the railroad company, that it would be liable if the injuries of the defendant'in error were - caused by the carelessness of one of its employees, who was intrusted with power to control and direct the defendant in error in the discharge of his duties in their common employment.

The contention between the parties is not, whether a given proposition is or is not law; but rather as to a question of mixed fact and law; namely, whether such relation of superior and subordinate existed between the'engineer of the train and the defendant in error as rendered the plaintiff in error responsible for an injury to the latter, caused by the carelessness of the former. The case is one for the application, rather than the definition of legal principles. We must therefore ascertain the exact relation which existed between the engineer and the defendant in error.

They were both servants of the railroad company engaged in a common employment; to wit, the operation of a single train of cars. The service. of the engineer was confined to the care and management of the engine, the motive power of the train, while the defendant was employed upon the cars, and his duty, among other things, was to tighten and loosen the brakes upon the cars. Although the duties of these servants were not identical, yet as the services of each were necessary to the accomplishment of a single purpose, namely, the movement of the train, they were fellow-servants, in a common employment; so that, if this relation, and none other, existed between them, the risk of injury to either by the carelessness of the other was assumed by each, and the common master or employer would not be liable. See Whaalen v. M. R. & L. E. R. Co., 8 Ohio St. 249 ; Manville v. C. & T. R. R. Co., 11 Ohio St. 417; P., Ft. W. & C. Ry. Co. v. Devinney, 17 Ohio St. 198 ; Kumler v. Junction R. R. Co., 33 Ohio St. 150.

This brings us to inquire whether there was such relation of superior and subordinate existing between the engineer and brakeman as to render the common employer responsible for injuries to the latter caused by the negligence of the former. The crew consisted of a conductor, engineer, fireman and two brakemen. Unquestionably the train was under the control of the conductor, and all the train hands were subject to his control and direction. By the rules of the company, “ Conductors are required to see that brakemen are attentive to duty. Two brakemen must, at all times, be stationed on the tops of the cars of each freight train, when the train is in motion.” “ The speed of freight trains, which must be governed by the use of brakes when descending grades, is not to exceed fifteen miles per hour.” “ Conductors of all trains aro required to keep a brakeman on the last car, while the train is in motion.” “Freight conductors are required to ride on a part of their train where they can see that their men attend to their duties, can signal them on descending grades and can assist in applying the brakes in case of danger.” “ Brakemen must use judgment in applying the brakes when approaching a station, and endeavor to stop the train at the right point without the necessity of the engine sounding the whistle.” These rules, as well as the weight of all the testimony, show that brakemen are under the general control and direction of the conductor.

Indeed, the only pretense, found in the testimony, for the claim of defendant in error, that brakemen are subordinate to the engineer of the train, is found in the fact, that it is the duty of brakemen to observe and obey certain signals given by the engineer, to wit: Rule 18. “ One long blast of the whistle is a warning of the approach of a train: one short blast is a signal for putting down brakes and stopping the train: two short blasts for relieving the brakes and starting the train: three, for backing the train.” It is contended that these signals are in the nature of orders or commands, which the engineer is authorized to give to brakemen, which they are bound to obey; and. hence, the relation of superior and subordinate is created. A majority of the court do not so understand either the purpose or effect of the rule. These signals are so named properly, and are intended to notify all concerned of the thing signified. They are addressed to the conductor as well as brakemen, and it is the duty of the conductor to see that brakemen perform the duty signified. This duty is imposed upon the brakemen by force of the rule itself, and not by virtue of any authority vested in the engineer over the brakeman. The signal is a mere notice. The rule is the order of the company to the brakeman directly. Suppose a train is signaled by a station agent, as this train was, to stop for orders. It thereby became the duty of the conductor, as well as of each employee on the train, to stop for orders; and yet, no one can contend that such station agent, who gives the signal, is the superior, and the train crew subordinate employees of the company, within the meaning of the rule under consideration. A variety of signals, under a variety of circumstances, are required to be given by different employees of the company, to signify that an occasion exists for the performance of a particular duty, but it would be absurd to hold that in each case, the employee giving the signal is a superior servant, to whom all others, to whom information is thus communicated, are subordinated; so that the company would be responsible to them for any act of negligence of the employee who gave the signal, whether such negligence was in giving the signal, or in the performance.of other duties.

For, it must be observed, that negligence or carelessness is not affirmed of the act of the engineer in giving either the signal to tighten the brakes or to loosen them. The only negligent and careless act charged against him, was in forcing the engine forward violently, without giving time to the brakemen to loosen the brakes. The signal informed the brakemen that the train was about to go forward. The rule is: “ Two short blasts for relieving the brakes and starting the train.” The matter of applying the steam to the engine, and starting the train forward, was under the control of the engineer alone, and although we think, upon the testimony, the act was recklessly performed and caused a very serious injury to the brakeman, it was, nevertheless within the risks assumed by the defendant in error when he engaged with the plaintiff in error to discharge the duties of brakeman on the train.

This conclusion of the court is fully sustained by the decision of the supreme court commission in P., Ft. W. & C. Ry. Co. v. Lewis, 33 Ohio St. 196. That case was an action by a brabeman against the railroad company for an injury caused by the negligence of the engineer, and the negligent act complained of was in starting the train, while the brakeman was in a dangerous position, without giving the required signal. We refer to the very able opinion of Judge Day, without quoting from the case, further than the 4th proposition in the syllabus, which reads as follows: Where an engineer and brabeman were employed by a railroad company in operating the same train, and there was no evidence to prove that the brakeman was placed in,a position of subordination to the engineer, other than what may be implied from the rules of the company, requiring the engineer to give certain signals as “a notice” to apply or loose the brakes, and requiring the brakeman to manage the brakes “ according to circumstances and the signals of the engineer,” and placing the brakeman, while on the train, in subordination to the conductor:—Held, that the engineer and brakeman were servants of the company engaged in a common service; that the relation of superior and subordinate did not exist between them; and that, therefore, the company was not responsible to the brakeman for an injury occasioned by the negligence of the engineer.”

True, in the case before us, several witnesses testified that, on the road of plaintiff in error, brakemen are subordinated to the engineer of the train; but upon the whole record, it is quite evident that the information of the witnesses was based solely upon the rules above quoted in regard to the giving and obeying signals for setting or relieving brakes, so that, in point of fact, this case in this respect is exactly simular to Lewis’s case; and a majority of the court can see no good reason for overruling that decision.

Judgments reversed a/nd cause remanded.

Okey, C. J.,

dissenting. A railroad company is liable in this state for the negligence of-a conductor, causing injury to a brakeman, upon the ground that the company places the conductor in a position of superiority to the brakeman. But there is no magic in the word conductor; and if the brakeman is bound to obey the orders of the engineer in applying and loosening brakes, as he clearly is, and while obeying such orders is injured by the negligence of the engineer, it is difficult to find satisfactory ground for holding that the company is not equally liable. Argument, however ingenious, based on a distinction between such cases, has for its support no valid reason, and is necessarily fallacious. In my opinion the law of this state is, that, wherever a master has in his employ two or more persons, and the nature of their employment is such that one is required to give orders to the others, who are bound to obey, and while doing so are injured by the negligence of the person placed in such position of superiority, the master is liable; and it is immaterial whether the negligent person be known as conductor, engineer, or by other designation.

In this case the company is clearly liable, in my judgment, by a just application of the principle I have stated. By the very nature of the employment, the brakeman was subordinate to the engineer. But that view is much strengthened by reference to the general rules for running trains,” which are made part of the record. In looking into those rules I find they do not support the theory that the conductor alone is superior to the brakeman. On the contrary, the engineer is, under the rules of the company, in many things as much superior to the brakeman, and as much beyond his control or advice, as the conductor, and the brakeman is quite as likely to be injured by the negligence of the former as the latter. The company speaks as emphatically and as potently through the engineer as through the conductor. Take the very ease under consideration. Pataskala was not a regular stopping-place .for this freight train. The conductor gave no signal to stop, but the engineer, in pursuance of a rule of the company, did give the signal for such purpose. The rules provide, inter alia: “ One short blast is a signal for putting down the brakes and stopping the train; two short blasts for relieving the brakes and starting the train. . . . When the signal bell on engine is rung by conductor to stop at next station, the engineer will answer the signal with two short whistles. Engineers will also gi/oe the same signal when it is seen to ie necessary to stop at a station at which he has not ~been signaled to stop iy the conductor.” Engineers “ will be held equally responsible with the conductors in case of any violation of the rules and regulations of the road.”

Here the engineer gave the signals because the company, by fixed rules, commanded him to give them, without waiting for any order of the conductor, and the brakeman obeyed the signals because it was his imperative duty to do so, under the rules of the company. And the same rules which required the engineer to give the signals, made it his duty, when the brakes were loosened, to put on more steam so as to increase the speed. The engineer, in performing this last duty, however, was guilty of gross negligence; he started the train so suddenly as to break it into three sections and maim Ranney for life; and it is fair to say that Ranney would not have been injured if he had not been at the very moment obeying the orders of the company, given through the engineer, to loosen the brakes.

The conductor performed no office whatever at or before reaching Pataskala station—there was none for him to perform. The injury would have happened the same way, to the same ex-' tent, and from the same cause, i. e., the negligence of the company, acting through the engineer, if the conductor had been absent from the train. Shall we segregate the acts of the engineer performed in the few moments which elapsed from the time of giving the signal to apply the brakes until the injury occurred, holding that in giving the signals he was the company’s alter ego, and in putting on more steam a fellow-servant of Ranney—his right hand the company, his left a mere fellow servant ? Surely there is no real foundation for any such distinction.

Railway Co. v. Lewis, 33 Ohio St. 196, was, I think, wrongly decided, and of the same opinion were two of the five judges who heard that case, and the view of the majority in this case is, in my judgment, equally erroneous.

White, J., dissented on the same ground.


author: Okey, C. J.

text:
    Pitts v. Foglesong.
    One, not induced by fraud, wbo indorses a negotiable promissory note owned by another, for his accommodation, without restriction as to its use, is Hable to an indorsee who receives it in good faith from the owner, before due, as collateral security for an antecedent debt of such owner, although there be no other consideration for giving such collateral. Roxborough v. Messiah, 6 Ohio St. 448, distinguished.
    Error to tlie District Court of Fairfield County.
    On January 18,1872, Creed Bros., of Lancaster, Ohio, being indebted to Pitts, Graham & Co., of Baltimore, Md., in the sum of $864.48, executed and delivered to them, payable to their order, two promissory notes of that daté, each for $432.24, one due in sixty and the other in ninety days after date. At the same time Creed Bros, were owners of a promissory note for $850, dated August 10, 1871, due two years after date, with interest from date, executed by Charles Becker, and payable to William Keller, or order. This note had been indorsed by Keller “ without recourse,” and in March, 1872, and previous to the 18th of that month, it was indorsed by Foglesong for the accommodation of Creed Bros., at the request of their father, and without restriction as to the manner in which the note should be used.
    On March 13, 1872, Creed Bros., seeing that they would be unable to inake payment in full of their note for $432.24, falling due in that month, applied to Pitts, Graham & Co. for an extension of time as to a part of it. They proposed to make to Pitts, Graham & Co. a payment on the note, and informed them that they owned the Becker note, and desired to forward it to them, so that they could have it discounted, apply the proceeds in satisfaction of such indebtedness, and send to them (Creed Bros.) the balance. This proposition was assented to by Pitts, Graham & Co., and in pursuance of an agreement between them and Creed Bros., the latter, on March 19, 1872, sent to them $232.24 in cash and their note of that date for $200, payable to the order of Pitts, Graham & Co., on April 18, 1872, which cash and note equaled the note so falling due in March, and Creed Bros, also sent to Pitts, Graham & Co. the Becker note, which cash and notes were received by the latter by due course of mail.
    Pitts, Graham & Co. having failed to procure a discount of the Becker note, informed Creed Bros, of the fact, and they, on April 8, 1872, wrote to Pitts, Graham & Co., as follows: “We wish you to hold (the Becker note) in protection to yourselves and us until you hear from us.” In reply to this, on April 20,1872, Pitts, Graham & Co. acknowledged receipt of the letter, and said: “We will hold the note as collateral security for your notes to us.” And there was no objection at any time from Creed Bros., or Foglesong, that the Becker note should be so held.
    Creed Bros, failed, without paying any part of their remaining indebtedness to Pitts, Graham & Co., and the latter demanded payment of the Becker note when it became due, and gave notice of non-payment to Foglesong, and subsequently brought suit against Foglesong in the court of common pleas of Fairfield county. In that court it was found that the amount of the Becker note exceeded the indebtedness of Creed Bros, to Pitts, Graham & Co., and judgment was rendered in favor of the latter, and against Foglesong, for $799.50, the amount of such indebtedness. That judgment was reversed in the district court, and this petition in error was filed in this court to reverse the judgment of reversal.

      John S. Brasee, for plaintiffs in error:
    “ It is universally conceded that the holder of an accommodation note, without restriction as to the mode of using it, mav transfer it, either in payment or as collateral security for an antecedent debt, and the maker will have' no defense.” 1 Parsons on Bills & N. 226; Rutland Bank v. Buck, 5 Wend. 66; Grandin v. Le Roy, 2 Paige, 509 ; Lathrop v. Morris, 5 Sand. 7 ; Mohawk Bank v. Corey, 1 Hill, 513; Mathews v. Rutherford, 7 La. Ann. 225 ; Appleton v. Donaldson, 3 Pa. St. 386 ; Boyd v. Cummings, 17 N. Y. 161; De Zeng v. Fyfe, 1 Bosw. 335 ; Robbins v. Richardson, 2 Bosw. 248; Kirnbro v. Lytle, 10 Yerg. 127; Lord v. Ocean Bank, 20 Pa. St. 384; 12 S. & R. 382; 3 Barr, 381. And this is not inconsistent with Roxborough v. Messick, 6 Ohio St. 448, or Kingsland v. Pryor, 33 Ohio St. 19.

      K. Fritter, for defendant in error:
    It is stated in the note sued on that it is secured by mortgage, and hence Pitts, Graham & Co. were not protected against defense that the note as to Foglesong was without consideration. Baily v. Smith, 14 Ohio St. 396. The note was indorsed to enable the parties to procure discount of the same, and hence Foglesong is not liable to persons who assume to hold it as collateral security. Stone v. Vance, 6 Ohio, 246 ; Williams v. Bosson, 11 Ohio, 62 ; Knox Co. Bank v. Lloyd, 18 Ohio St. 353. Regarded as collateral security, it was taken without any extension of time or other consideration, and hence as against Foglesong is no more enforceable in favor of Pitts, Graham & Co. than it would be in favor of Creed Bros. Roxborough v. Messick, 6 Ohio St. 448; Quebec Bank v. Weyand, 2 Cin. Sup. Ct. 538.
   Okey, C. J.

Where one not induced by fraud indorses a negotiable promissory note for the accommodation of another, without restriction as to the use which may be made of the note, a third person who receives it before due as collateral security for a debt to become due from the person for whom the indorsement was made, and subsequently prosecutes an action against such indorser, will not be affected, with respect to his right to recover, by the fact that such defendant is an accommodation indorser. The obligation of the indorser in such case is the same, whether the indorsement was for value received or for accommodation. Stone v. Vance, 6 Ohio, 246 ; Riley v. Johnson, 8 Ohio, 526 ; Williams v. Bosson, 11 Ohio, 62; Clinton Bank v. Ayres, 16 Ohio, 282; Portage Co. Bank v. Lane, 8 Ohio St. 405; Erwin v. Shaffer, 9 Ohio St. 43; Knox Co. Bank v. Lloyd, 18 Ohio St. 353 ; Kingland v. Pryor, 33 Ohio St. 19 ; First National Bank v. Fowler, 36 Ohio St. 524. And see Jackson v. Bank, 42 N. J. L. 177.

The question in this case is, therefore, as to the liability of Foglesong upon Ills indorsement, in view of the fact that the note so indorsed was transferred by Creed Bros, as collateral security for the payment of notes to become due from them to Pitts, Graham & Co., no express agreement having. been made by the latter for an extension of time or other favor with respect to the notes made by Creed Bros.

In Roxborough v. Messick, 6 Ohio St. 448, it was held: “ Where the note of a third person is transferred bona fide before due, as collateral security, and for value, such as in consideration of a loan or advancement, or a stipulation, express or implied, of further time to pay a pre-existing debt, or in consideration of a change of securities of a pre-existing debt, or the like, the holder of such collateral will be protected from infirmities affecting the instrument before it was thus transferred.” And see 1 Daniels Neg. Insts. § 830.

Here there was no consent on the part of Pitts, Graham & Co. to the extension of time as to any part of the debt, until their debtors proposed to place in their hands the Becker note, and it is a presumption which is by no means unreasonable that obtaining possession of that note was with them an essential part of the arrangement by which the time was extended. True, they had been unable to dispose of the note in the manner intended, though it does not appear that they had abandoned hope of disposing of it substantially in the same way. It is certain that they did not return it to Creed Bros., but retained possession, and it is not probable they would have consented to part with possession before they were paid. That they only agreed not to dispose of the note in view of the agreement that they should hold it as collateral security, and that this is in harmony with the original purpose of the parties, is by no means improbable. Moreover, they did in fact wait until the Becker note became due, retaining it in the meantime; and they demanded payment of the maker, at the maturity of the note, and gave notice of non-payment to Foglesong, the indorser, and then brought suit, the debt from Creed Bros, remaining unpaid. But whether or not it is to be fairly inferred from these facts that time was given to Creed Bros, in consideration of the security afforded by tbe Becker note, within the rule so stated in Roxborough v. Messick, is a question not entirely free from difficulty, and it is unnecessary to express any definite opinion ¡upon it.

The defendant’s counsel insists that the case falls within the second proposition decided in Roxborough v. Messick, and hence that Pitts, Graham & Co. were not entitled to recover. That proposition is as follows: “ When a debt is created, without any stipulation for further security, and the debtor afterward, without any obligation to do so, voluntarily transfers a negotiable instrument, to secure the pre-existing debt, and both parties are left, in respect to the pre-existing debt, in statu quo, no new consideration, stipulation for delay, or credit being given, or right parted with, by the creditor, he is not a holder of the collateral for value, in the usual course of trade, and receives it subject to all the equities existing against it at the time of die transfer.” ■

We are by no means disposed to question the proposition so decided. While it is not concurred in by some judges for whose opinions we have great respect (Railroad Company v. National Bank, 102 U. S. 14; Poirier v. Morris, 2 E. & B. 89; Currie v. Misa, L. R. 10 Ex. 153 ; 1 App. Cas. 551; 11 Am. L. Rev. 481), its correctness has been repeatedly recognized in this court and elsewhere. Hatch v. Langdon, 7 Ohio St. 218, 255 ; Gebhart v. Sorrels, 9 Ohio St. 161, 466 ; Cleveland v. State Bank, 19 Ohio St. 145, 150 ; Copeland v. Manton, 22 Ohio St. 398, 102 ; 11 Am. L. Rev. 485.

But the principle so stated in Boxborough v. Messiah is not applicable to this case, and hence cannot control it. The same rule prevails in Pennsylvania (Petrie v. Clark, 11 S. & R. 377 ; Royer v. Keystone Bank, Cummings v. Boyd, 83 Pa. St. 218, 372); and yet, in Lord v. Ocean Bank, 20 Pa. St. 384, it was held that “'the maker of an accommodation note cannot set up the want of consideration as a defense against it in the hands of a third person, though it be there merely as a collateral security for a debt of the payee.” Black, C. J., who delivered the opinion, fully recognized the rule, applied in Roxborough v. Messick, and added: “ But the maker of an accommodation noto cannot sot up the want of consideration as a defense against it in the hands of a third person, though it be there as collateral security merely. He who chooses.to put himself in the front of a negotiable instrument for the benefit of his friend must abide the consequence (12 S. & R. 3S2), and has no more right to complain, if his friend accommodates himself by pledging it for an old debt, than if he had used it in any other way.” And the same thing had been asserted before, and was asserted afterward, in the same court. Appleton v. Donaldson, 3 Barr, 381; Work v. Kase, 34 Pa. St. 138.

So, in New York the rule is as stated in the second proposition in Roxborough v. Messick (14 Am. L. Rev. 485 ; Duncomb, v. N. Y., &c. R. Co., 84 N. Y. 190, 204); and yet, in Grocers' Bank v. Penfield, 69 N. Y. 502, the court, fully recognizing that fact, hold : “ Where a promissory note is made for the accommodation of the payee, but without restriction as to its use, an indorsee taking it in good faith as collateral security for an antecedent debt of the payee and indorser, without other consideration, occupies the position of a holder for value, and can recover thereon against the maker. The precedent debt is a sufficient consideration for the transfer, and no new consideration need be shown. It is only where the note has been diverted from the purpose for which it was intended, by the payee, or where some other equity exists in favor of the maker, that it is necessary that the holder should have parted with value on the faith of the note, in order to enforce the same.” And the same distinction had been asserted in that state previously, and has been re-asserted subsequently. Schepp v. Carpenter, 51 N. Y. 602; Freund v. Bank, 76 N. Y. 352.

Cases in support of the distinction here made are quite numerous. Many of them are collected in 14 Am. L. Rev. 486, 488; Story on Prom. Notes (7th ed.), 265, 266, note; Maitland v. Citizens' Bank, 40 Md. 540, 567; 9 Ohio St. 51. Indeed, the only case I have found which can be regarded as supporting a different view of the law upon this- subject, is Bramhall v. Beckett, 31 Maine, 205 (cited in Nutter v. Storer, 48 Maine, 163); but in that case the distinction so well made in Lord v. Ocean Bank, Grocers’ Bank v. Penfield, and other cases cited, is not alluded to by court or counsel.

A claim has been made that the language of the court in Roxborough v. Messick is broad enough to warrant the conclusion that Foglesong is exonerated from liability upon the mere ground that he was an accommodation indorser. But in that case it appeared that Roxborougli, the mater of the notes, had a defense to them, and their transfer by 'Wilcox, the payee and indorser, as collateral security, was a fraud upon him. Of course the learned judge who delivered the opinion in that case never intended it to extend to a ease arising on an accommodation indorsement of this character, and any general language he may have employed must be-limited to cases like that which was then before the court.

Judgment reversed.


author: Johnson, J.

text:
    Hamilton v. Merrill.
    1. No recovery can be had on a bond given to obtain the discharge of a water-craft, seized under the Watercraft Law of Ohio, in an action against such craft, on a cause of a maritime nature, which is within the exclusive admiralty jurisdiction of the United States courts.
    2. The fact that the owner of such craft, after the bond was given, defended the action against it, on the merits, without objecting to the jurisdiction of the court, does not estop him and his sureties .from pleading such want of jurisdiction in an action against them on the bond.
    The General Buell v. Bong, 18 Ohio St. 521,—followed and approved.
    Error to the District Court of Gallia County.
    On May 8, 1860, plaintiff, Jonathan Hamilton, commenced an action against the steamboat R. B. Hamilton, under the Watercraft Law of Ohio, to recover damages for sinking the plaintiff’s flat-boat, while navigating the Ohio River.
    Upon a warrant issued in that action the boat was seized by tlie sheriff. To obtain its discharge, the sheriff, as authorized by section 5 of that law (1 S. & O. 251), took a bond from defendants in the usual form, and delivered the 'boat to the defendant J. P. Merrill as master thereof.
    A final judgment was rendered in that action in favor of the plaintiff, but the boat was not forthcoming to satisfy the same, hence this action on the bond.
    To the petition there was a demurrer on the ground that the state court had no jurisdiction in rem against the steamboat, and therefore, as the court had no jurisdiction of the action in which the bond was given, no action could be maintained on the bond. On error to this court it was held, that the judgment in the action against the boat will not be held void, in a collateral action on the bond, for want of jurisdiction, where it does not appear that the judgment was rendered on a maritime cause of action. Inasmuch as the petition on the bond did not show the nature of the claim on which the vessel was seized, and as the "Watercraft Law had been held valid as to claims not maritime, the' court would, until the contrary was shown, presume in favor of the jurisdiction of the court making the seizure. The demurrer was therefore overruled. Hamilton v. Merrill, 25 Ohio St. 11. The case was remanded to the common pleas, where an answer was filed, alleging the maritime nature of the original cause of action and the absence of jurisdiction of the state court. It further averred that the sheriff, without authority of law, had seized the steamboat, and that the owner was compelled, in order to obtain the custody of his property, to give this bond.
    The reply admits the maritime nature of the action, but in avoidance, alleges that the bond was taken by the sheriff at the request of the obligors to obtain possession of the boat, and that Merrill was master and sole owner, and as such, pleaded to that action in the name of the boat, and made defense to the merits without objection to the jurisdiction of the court; hence it is claimed that these defendants, Merrill and Shepard, are estopped from objecting to the jurisdiction of the court in the present action.
    A demurrer to this reply has been sustained in the courts below, and tbe object of tbe present proceeding is to reverse these decisions.

      Simeon Nash, for plaintiff in error.

      T. W. Hampton and D. B. Hebard, for defendant in error.
   Johnson, J.

It is conceded that the cause of action, in which the steamboat was seized, to obtain the discharge of which this bond was given, was of a maritime nature, and within the exclusive cognizance of the United States courts..

This being so, the state court had no jurisdiction to seize the property, and no authority of law to exact the-bond for its release.

The sole question therefore is, are the obligors on the bond estopped to raise the question of jurisdiction by reason of the facts stated in the reply.

The acts alleged as creating an estoppel are, that Merrill, who was sole owner of the boat, defended on the merits in the action against the boat without objecting to the jurisdiction of the court. These acts were all after the bond was given. How these after acts can vitalize a bond which the court had no authority to exact, it is not easy to comprehend.

It was not a voluntary bond. It was given in mvitum, to obtain the release of property. As the seizure of the property was void the bond falls with it. Giving it under such circumstances could not confer jurisdiction on the court over to the subject matter of the seizure. Homan v. Brinkerhoof, 1 Denio, 184 ; Matter of Faulkner, 4 Hill, 598.

The claim is, that Merrill, by defending on the merits in the original action, has waived his right to defend in this action on the bond, on the ground that the court was without jurisdiction to require it.

We regard this question as settled. The General Buell v. Long, 18 Ohio St. 521. That case arose before the decision in The Belfast, 7 Wall. 764, and other cases, which decided that our Watercraft Law, so far as it related to maritime causes, was unconstitutional and void. The boat was seized for such a cause. The defense was upon the merits in the courts below, without objection to the jurisdiction of the state court. After a petition in error had been filed in this court by the craft, to reverse the judgment rendered on the merits, a new assignment' of errors was allowed, and then for the first time want of jurisdiction was set up as a ground of reversal. This court held, that a failure to plead to the jurisdiction of the court in the tidal court, was no waiver of the objection when such xvant of jxirisdiction appeared upon the record. In the opinion, it is said, that it was not a case where the court had jurisdiction over the subject-matter of the suit, and therefore differs from want of jurisdiction over the person, which was a personal privilege that could be waived.

If a defense on the mexits in the original action, without objection to the jurisdiction, was not a waiver of the right, after final judgment, to assign it as exTOX’, and obtain a reversal, for equally cogent reason will such a defense be no bar to an answer setting xxp want of such jurisdiction in an action on the bond. The right to do so is equally as clear, and the x’easons in support of it rest on stronger gx’onnds than the right to assign it as error, after final judgment in the original action.

This conclusion is supported by Vose v. Cockcroft, 44 N. Y. 415,—which, like the present, was an action otx a bond given to obtain the release of a vessel seized under the "Watercraft Law of New York, which its own coux'tshad pronounced unconstitutional in The Josephine, 39 N. Y. 19.

In Vose v. Cockcroft, the defense was upon the merits as to the liability on the bond, but there was no plea to the jurisdiction, as there is in the px-esent case. It was there held, that the proceeding under which the vessel was released, and the bond exacted to obtaiix such release, were void, and that the owner of the craft has the right to its possession; and a bond given to obtain such possession was not voluntary, but was obtained by duress and illegal compulsion.

It was, however, held, that as no plea to the jurisdiction had been made in the trial court, and as the court of appeals had no authority, on review, to consider questions not made and decided in the court in which the judgment was rendered, the obligors on the bond must be deemed to have waived such plea. Here, however, the want of jurisdiction was urged in the court below, first by demurrer, as appears in 25 Ohio St. 11, and again by answer, to which the reply under consideration was filed.

Counsel for plaintiff are mistaken in supposing that this reply is sanctioned by the decision of Cockcroft v. Vose, 14 Wall. 5, or that the decision in that case conflicts with the holding of this court in the case of The General Buell. All that was there decided was, that the supreme court of the United States 'had no jurisdiction to review on error, under section 25 of the Judiciary Act, the decision in 44 N. Y., for the reason that it did not appear from the record, that the decision of the state court was in' favor of the validity of the New York Watercraft Law. Hence no federal question was presented on the record, and the writ of error was dismissed. The remarks of Mr. Justice Miller in dismissing the writ were simply to show that the state court had not decided that the state law was valid, but the contrary, and therefore that the case did not come within the provisions of section 25 of the Judiciary Act of the United States.

Judgment affirmed.


text:
    Dawson v. The State.
    An official bond conditioned for tbe faithful discharge of the duties of an office “according to law” embraces duties required by laws in force during the term of the officer, whether enacted before or after the execution of the bond. King v. Nichols, 16 Ohio St. 80, approved.
    Error to the Court of Common Pleas of Wayne County Reserved in the District Court.
    The original action was brought by the state of Ohio against Jacob B. Koch, principal, and Archibald Dawson and others, the plaintiffs in error, sureties, on the official bond of said Koch as treasurer of Wayne county for the term commencing on the first Monday of September, 1872, and continuing for two years, and until his successor was elected and qualified.

      Kocli was elected on tbe second Tuesday of October, 1869, and tbe bond sued on was executed on .December 6,1869. The condition of tbe bond was as follows: “Nowif the said Jacob B. Koch shall faithfully discharge all the duties of his said office, and shall pay over according to law all money which shall come into his hands as such county treasurer, for state, county, township or other purposes, during his said term of office, then this obligation to be void, otherwise to be and remain in full force and virtue.”
    At the date of the execution of the bond, the city of "Wooster, a city of the second class, with a population of less than 50,000, was the county seat of Wayne county, in which was elected annually a city treasurer, who was ex offieio treasurer of the city school district, and whose duty it was to receive from the county treasurer all moneys belonging to the city and school district, and disburse the same according to law.
    Between the date of the bond and the commencement of Koch’s term of office, to wit, on April 2, 1870, the general assembly passed an act (67 Ohio L. 32) providing, among other things, “ that in cities of first and second class, having a population of less than 50,000, embracing a county seat, no election for city treasurer shall be held, but the county treasurer shall, in such cases, act as city treasurer,” &c. Hence, it is contended by plaintiffs in error, that as sureties for Koch as treasurer of the county as aforesaid, they are not liable on their bond, for any failure on the part of their principal “ to pay over according to law ” moneys which .came into his hands for the use of said city or school district:

      Lynch, Lay & Lynch, for plaintiff in error:
    The subsequent legislation so changed the duties of Koch’s office, his powers and his obligations, as to release his sureties from all obligation upon his official bond. Pyrus v. Gibb, 38 Eng. L. & E. 57; S. C., 88 Eng. C. L. 903; Miller v. Stewart, 9 Wheat. 680; 9 Wheat. 720; 7 Bosw. 94; Rathbone v. Warren, 10 Johns. 587; Evans v. Bradley, 17 Wend. 422; 3 Wash. 70; State v. Corey, 16 Ohio St. 17; Myers v.
      Parker, 6 Ohio St. 501; State v. Medary, 17 Ohio, 554; Bethume v. Dozier, 10 Ga. 235; McKay v. Dodge, 5 Ala. 388; Ins. Co. v. Smith, 2 Hill (S. C.) 589; Brown v. Latimore, 17 Cal. 93; Kenebeck v. Turner, 2 Me. 42.
    Jó/wt McSweeney, John McSweeney, Jr., and W. J. Gilmore, for defendant in error:

      People v. Vilas, 36 N. Y. 459-472; Brandt on Suretyship, 608, and eases cited; United States v. Gaussen, 2 Paine, 189.
   By the Court.

A faithful discharge of the duties of the office of county treasurer, within the condition of his official bond, required the payment over according to law ” of all moneys which came into the hands of the treasurer, during his term, belonging to the city or school district.

This duty is within the very letter of the bond, and in contemplation of law must be regarded as within its intent and meaning as understood by the parties at the time of its execution. The power of the legislature to modify the duties of the.officer during his term cannot be doubted, and the exercise of such power must have been within the contemplation of the parties at the time the bond was executed. “ According to law ” embraces statute law in force during the term of office, whether passed before or after the execution of the bond. King, Carey & Howe v. Nichols, 16 Ohio St. 80, approved and followed.

Judgment affirmed.


text:
    The State v. Board of Education.
    A special act, taking effect on the day of its passage, required the board of education of a city to release the sureties of a county treasurer from liability for school funds of the board, which came to the hands of the treasurer for disbursement, but the release, was not to be made until the question whether the sureties should be released was determined in favor of the release by a majority of all.the votes oast in such, city at the then next April election. Held, that the act is not in conflict with the constitution ; and the fact that judgment had been rendered against the sureties for the amount of such funds, will make no difference. Board of Education v. McLandsborough, 36 Ohio St. 227, followed.

      Mandamus.
    This is a proceeding in mandamus by Archibald Dawson and others, sureties of Jacob B. Koch, treasurer of Wayne county, to compel the board of education of Wooster, in that county, to release from liability to said board Archibald Dawson and others, sureties as aforesaid, as to the amount found to be due to said board and unpaid, which sum forms part of the judgment in favor of the county commissioners of said county and against Dawson and the other sureties; which judgment was affirmed in the preceding case of Dawson v. State, ante, 1.
    These are the facts. At the March term, 1876, of the court of common pleas of Wayne county, a judgment was rendered in favor of the county commissioners of Wayne county, against Jacob B. Koch, treasurer of that county, and Dawson and others, his sureties, for $26,210.23, based on the defalcation of Koch as such officer. It was found and adjudged in the case, that the amount due to Wayne county, the city of Wooster, and the board of education of the city, was $58,680.77, while the amount in the treasury was only $38,669.86, leaving a deficit of $20,010.91, which with interest and penalty amounted to the sum for which judgment was rendered. The county commissioners gave Koch a receipt, at the settlement for the sum so found in the treasury, and it is agreed that if the relators are entitled to a peremptory writ of mandamus requiring the board of education of Wooster to release the sureties as to any amount, such writ should require the release as to the sum of $5,285.66, which is embraced in the judgment, according to the principle determined in Commissioners v. Springfield, 36 Ohio St. 643.
    The relators claim they are entitled to have the release entered by authority of an act “for the relief of the sureties of'. Jacob B. Koch,” &c., 74 Ohio L. 417. That act took effect and was in force from and after March 20, 1877, the day of its passage. It provided that the county commissioners should release and cancel the judgment as to Dawson and the other sureties, but not as to Koch. Before making such release and cancellation, the commissioners were required to submit the question whether such act should be done, to the electors of Wayne county at the April election, 1877, upon ten days’ notice, published in one or more newspapers. Electors throughout the county were requested to vote as to the release of the amount due the county, and the ballots to be cast within the city were required to contain an expression, first, as to the release of the amount due to the county; second, as to a release of the amount due the city; and, third, as to the release of the amount due the board of education of the city. And the act further provided, that “ if a majority of all the electors of the city of Wooster, voting at said April election upon the second and third propositions, or either of them, as herein specified, shall vote ‘ yes,’ then the board of education and city council of the city of Wooster shall each respectively release all the sureties on the bonds of the said Jacob B. Koch . . . from all liability for the payment of any sum or sums of money due to the board of education or the city of Wooster on account of such suretyship.”
    A majority of the votes cast at the aforesaid election was in favor of such release as to the amount due to the board of education; but the board of education refused to make or enter' such release, and this proceeding by mandamus is to compel the board to perform that service.
    Lynch, Lay d? Lynch, for the relators :
    The law was not invalid because the release was not to be entered until it was shown that a majority of those voting at the April election were in favor of such release. 1 Ohio St. 77; 1 Ohio St. 105; 2 Ohio St. 607; 2 Ohio St. 647; 5 Ohio St. 497; 8 Ohio St. 564; 26 Ohio St. 618; 36 N. J. 72; 108 Mass. 27; 42 Md. 71; 13 Grat. 90; 26 Vt. 365; 72 Pa. St. 491; 42 Conn. 364; 10 Foster, 279.

      W. J. Gilmore, J. McSweeney, Sr. and J. McSweeney, Jr. for the defendant :
    As to 1st point of per curiam. Ram on Judgment, 17; Rev. Stats. § 1126; 2 Bl. Com. 137; Acherson v. Miller, 2 Ohio St. 203. As to the 2d point, Goodale v. Fennell, 27 Ohio St. 426. As to the 8d point, Rev. Stats. § 1080. As to the 4th point, Kelly v. State, 6 Ohio St. 269; Lehman v. McBride, 15 Ohio St. 573; Ex parte Hagan, 25 Ohio St. 426. As to statutes requiring a preliminary vote, 2 Ohio St. 607; 8 Ohio St. 564; 1 Ohio St. 105; 26 Ohio St. 618. In all these cases the thing to be done was prospective.
   By the Court.

Several objections are urged against the allowance of the peremptory writ:

1. The legislature is prohibited by the constitution, art. 1, § 19, from passing an act to require the release of the amount due to the board of education, which has passed into judgment.

2. The act is retroactive and impairs the obligation of a contract, and hence is prohibited by the constitution, art. 2, § 28.

3. The money directed to be released is a trust fund, under the constitution, art. 6, §§ 1, 2, and the general assembly had no such power, with respect to it.

4. The act has a general subject-matter, but being special, it is in conflict with the constitution, art. 2, § 26.

In answer to this contention it is sufficient to say that the objections are not well taken, and that the case is not distim guishable in principle from Board of Education v. McLandsborough, 36 Ohio St. 227. And see State ex rel. Corry v. Hoffman, 35 Ohio St. 435; Nelson v. Milford, 7 Pick. 18; State v. Hammonton, 38 N. J. L. 430. The only question before us is as to legislative power, and that being resolved in favor of its existence, the responsibility, as well as the power, with respect to such legislation, must rest with the general assembly.

Peremptory writ awarded, rerpairing a release as to $5,285.66.


author: By the Cotjet.

text:
    Barnett v. The State.
    Error to the Court of Common Pleas of Washington County.

      W. G. Way and J. H. Hamilton, for plaintiff in error.

      George K. Hash, attorney-general, for defendant in error.
   By the Cotjet.

The plaintiff in error was indicted for burglary of a barn, under section 6835 of the Revised Statutes.

On the trial the proof showed, that the building, which had been broken and entered, had been erected by its owner on his farip, for a dwelling-house, but had never been occupied or used as such; that its owner had for several years, and ever since its erection, used it to store wheat after it was threshed, and corn after it was husked, such grain being the products of the farm on which the building'was erected.

Held: That this building was a bourn within the meaning of said section. Ratekin v. State, 26 Ohio St. 420, followed and approved.

Judgment affirmed.