author: Minshall, C. J.

text:
    Weller v. The State.

      Manufacture of vinegar — Process of artificial coloring — Adultera, tion — Legislative power to prevent — Act of April 14, 1888 (85 Ohio Laws, 259) — Constitutional law.

    1. Where, in the manufacture of vinegar, low wine, formed from fermented grain, is, previously to its aeetification, passed through roasted malt, not for the purpose of adding any substantial ingredient to the vinegar, but for the purpose of giving it color as well as aroma and flavor, and without this treatment it would be colorless, the vinegar so produced contains artificial coloring matter within the meaning of section 2 of an act to prevent the adulteration of vinegar, as amended April 14, 1888 (85 Laws, 259); and its possession for the purpose of sale is an offense under the provisions of section 5 of the same act.
    2. Section 2 of the above entitled act, as amended April 14, 1888, does not exceed the police power of the state conferred on the general assembly by the constitution in the general grant of legislative power, and is a valid law.
    (Decided May 14, 1895.)

      Error to the Circuit Court of Hamilton county.
    On the sworn complaint of George A. Root, made April 28, 1894, to E. J. Tyrrell, a justice of the peace of Hamilton county, Cincinnati township, Jacob Weller, the plaintiff in error, was arrested on the charge, that on December 11, 1893, at the county of Hamilton, he, the said Jacob Weller, did knowingly have in his possession with intent to sell, a quantity of vinegar, found upon proper test, containing artificial coloring’ matter, contrary to the statute in such case made and provided. The defendant plead not guilty, and having waived a jury the court heard the evidence, and found the defendant guilty. The verdict of guilty was based upon the following special finding of the facts:
    “I find from the evidence that vinegar is the dilute form of acetic acid, having a flavor that varies, according to the source from which it is obtained.
    “That the accused is a vinegar manufacturer, and did, on the eleventh day of December, 1893, in the city of Cincinnati, county of Hamilton and state of Ohio, knowingly have in his possession, with intent to sell, a quantity of vinegar; that the product out of which said vinegar was made, in the process of manufacture, as shown by the testimony, was mixed with roasted or parched malt before being run through the tub of beech shavings; that the alcohol was there converted into acetic acid, and that the roasted malt contained no alcohol to be so converted; that said roasted malt, by so being mixed with the product, imparted a flavor, odor, and a brownish color to the vinegar, and that the defendant knew that said roasted malt did impart color to said vinegar; that said color is imparted to said vinegar by the process, and in the manner proved, was found, upon proper test, as set forth in the evidence, to contain artificial coloring matter, so added in manner and form as proved by the evidence, and that the defendant did know that fact.”
    The defendant made a motion to set aside the findings and verdict, and for a new trial, on the ground that it is contrary to law and the evidence. The motion was overruled, and judgment entered, assessing a fine of fifty dollars and costs, to which the defendant excepted. The defendant took a bill of exceptions embodying all the evidence, which is made a part of the record. On- a petition in error to the common pleas, the judgment was affirmed. Error was then prosecuted in the circuit court, where the judgment was affirmed by a divided court, there being but two judges present. A number of errors are assigned, the material ones being: (1), That the court erred in not granting’ a new trial on the ground that the verdict is not sustained by the evidence, and (2), that the act is unconstitutional.

      O. JB. Simrall and Alfred Mach, for plaintiff in error.
    It is scarcely necessary to cite authority in support of the proposition that it is a cardinal rule to construe penal statutes strictly. Shultz v. Cambridge, 38 Ohio St., 659 ; Wert v. Clutter, 37 Ohio St., 347.
    It is the duty of the courts, in the interpretation of statutes, unless restrained by the letter, to adopt that view which will avoid absurd conse- , quences, injustice or great inconvenience, as none of these can be presumed to have been within the legislative intent. Moore v. Given, 39 Ohio St., 661. Likewise, the universally applied rule of public policy, forbidding any act or contract in restraint of trade, calls for such construction of a statute as will not be an unreasonable prohibition against long established and recognized industries. Central Ohio Salt Co. v. Guthrie, 35 Ohio St., 666; Brundred et al. v. Rice, 49 Ohio St., 640.
    Bearing- in mind these principles, the construction of the act of April 14, 1888, in’ accordance with the claims made above, follows as an inevitable consequence. State v. Newton, 50 N. J. L., 534.
    Malt vinegar, made by the fermentation process, would be made of the same ingredients and have the same color, aroma and flavor and would require from seven to nine months. This is a matter of common knowledge of which this court will .take judicial notice. Cross v. Armstrong, 44 Ohio St., 613; Ross v. Boswell, 60 Ind., 235, Garth v. Caldwell, 72 Mo., 622; Downey v. Hendrie, 46 Mich., 498; Terhune v. Phillips, 9 Otto, 592.
    Applying the principles of law stated above to the facts as they appear from the record and admissions, can there be any doubt that Weller did not violate the provisions of the act of April 14, 1888, for the reasons:
    1. No coloring matter was used.
    2. No artificial coloring matter was used.
    3. This statute contemplates artificial coloring matter that is extraneous from the ingredients and does not apply to a case where color is derived incidentally from the ingredients, used admittedly for some other purpose. It does not prohibit the use of the essential ingredients for the purpose of restoring to the partly manufactured article the flavor and aroma of the ingredients from which it is made, even if the use of such ingredients, at the particular stage of the manufacture, also incidentally imparts color. Salt Company v. Guthrie, 35 Ohio St., 672.
    We concede that the police powers vested in the legislature give the fullest right to enact laws in protection of the public morals, health and safety. We concede even more; the police powers give the right to enact any law to prevent fraud or deception, such as laws requiring labels, etc., denoting contents. Budd v. State, 143 U. S., 517; People v. Jackson County, 9 Mich., 285; In re Jacobs, 98 N. Y., 98; People v. Marx, 99 N. Y., 377.
    Of course we admit the radical distinction between acts prohibitive of the avowed and published use of wholesome articles, and acts prohibiting the use of such articles in such manner as to deceive and mislead. Instances of the latter acts, which have been declared constitutional, are, Palmer v. State, 39 Ohio St., 236; Powell v. Pennsylvania, 127 U. S., 678; People v. Arensberg, 105 N. Y., 123.
    We call attention to the legislation seeking to prevent Chinese engaging in laundry business, which was held unconstitutional and void, and not in fact regulations protecting public health. Yich No v. Hopkins, 118 U. S., 356; Re Tie Loy, 26 Fed. Rep., 611; Re Sam Kee, 31 Fed. Rep., 688. It is a well settled principle of law that the facts of the case, and not the act of the legislature, constitutes any property or action a nuisance. Butcher's Co. v. Crescent City Co., 111 U. S., 746; Wyne-Hamer v. People, 13 N. Y., 378; Pumpelly v. Green Bay Co., 13 Wall., 166; Lake View v. Rose Hill Cemetery Co., 70 Ill., 192.

      We conclude, therefore, that if the court finds that the act in question is designed not to prevent adulteration or deception, but absolutely to prevent the use of articles, however wholesome, then the act should be pronounced unconstitutional and void.

      Dye Dye, for defendant in error.
    To argue that when the statute plainly and positively prohibits the sale of vinegar containing artificial coloring matter that it does not mean to prohibit the sale of vinegar which deceives the eye, is, it seems to us, rather illogical. The sole aim and object of such statute is to prevent deception., Any vinegar which contains a color that does not belong to it of right, is prohibited under this act, no matter how nutritious it is ; no matter what its aroma, if when it appears on the market it contains an artificial coloring matter, then it can not be sold.
    The words coloring matter, in their simplest sense, mean any matter which will produce color. The word artificial means, take it from its Latin derivation, which also gives its true English meaning (ars — art or skill; and fado, facere — to make), means anything which is the product of human art or skill, as distinguished from the products of nature. This would give us three methods of construing the words artificial coloring matter.
    1. The broad meaning, which would be any substance which would produce color and which substance was made by art or skill, as for instance, roast malt, burnt sugar or caramel.
    2. The more restricted meaning, as substances which are classed by scientists as coloring matter. This, the testimony shows, would also include burnt sugar, aniline, and Professor Fennell claims, even roast malt. Under a strict construction of the law against the defendant, if the vinegar, when it appeared in the market, contained either of the above, under the above two constructions it would be a crime if the scienter be present
    3. But, we take it, the proper construction is the one most liberal to the defendant, and that is this, that the words containing artificial coloring matter mean that the vinegar must have simply that color which that. kind of vinegar would have naturally without the addition of any other substance for any purpose whatever.
    The question of the constitutionality of the act,' we think, has been substantially passed upon by this court in the case of Palmer v. State, 39 Ohio St., 236, and we submit it without argument.

      First — The verdict of a court sitting- as a jury on a question of fact is entitled to the same consideration as the verdict of a jury. 4 Ohio St., 60.

      Second — Before the verdict of a jury will be reversed by a reviewing court, they must find that there is no evidence to sustain the verdict, or that the verdict is palpably against the weight of the evidence. 6 Ohio, 456; 3 Ohio St., 499; 2 Ohio St., 44; 4 Ohio St., 566; 5 Ohio St., 107, 286; 22 Ohio St., 38; 14 Ohio St., 282; 17 Ohio St., 499; 5 Ohio, 509; 12 Ohio St., 146; 6 Ohio St., 497; 7 Ohio St., 75.
    Of course the question of what is artificial coloring matter within the meaning of our statute, is a question of law, but after the court has passed upon the question, the next is, is there any. evidence to show that this vinegar contained such artificial coloring matter, and if there be any such evidence the decision of the lower court will be affirmed.
   Minshall, C. J.

The statute upon which the complaint in this case was made and the conviction had, is section 2, of an act to prevent the adulteration of vinegar, as amended April 14, 1888 (85 Laws, 259), and reads as follows: “No person shall manufacture for sale, or knowingly offer for sale, or have in his possession with intent to sell, any vinegar found upon proper test to contain any preparation of lead, copper, sulphuric acid, or other ingredients injurious to health, or containing artificial coloring matter. ’ ’ A violation of the act is, by the fifth section, made an offense, punishable by fine or imprisonment, or both.

The only question in the ease, aside from the validity of the law, is, whether the finding of the justice is supported by the evidence; and in this court, that question is limited to whether there was any evidence tending to support the material averments of the complainant. Such is the rule in all other cases; and no reason is perceived why this ease should form an exception to it. The charge was that on December 11, 1894, the defendant knowingly had in his possession a quantity of vinegar, found on proper test to contain artificial coloring matter. The possession of the vinegar and the intent to sell, were admitted, but he denied that it contained artificial coloring matter; and this is the only question on which an issue of fact was taken at the trial.

Prof. Fennel, an analytical chemist called by the state, testified that from an analysis made by him, the vinegar in question contained artificial coloring matter; that it was of a “turbid brown color;” that the analysis indicated “burnt sugar,” and could have been introduced for no other purpose than to give color to the vinegar. On cross examination he said, if roasted malt had been used in the manufacture of the vinegar, it could have had no other result than to give color, but admitted that if used in large proportions it might give aroma. He explained that roasted malt is not what is known in commerce as caramel — a coloring-matter, but said that practically it is the same thing. That in roasting, the sugar of the malt is converted into caramel, or burnt sugar, and serves as a coloring matter thus derived from the roasted malt.

The defendant, Weller, was called as a witness in his own behalf, and explained the process by by which he made the vinegar. He said that corn, malt and rye in certain proportions are ground into meal, then put into a mash tub and cooked with steam for an hour and a half. It is then run through cooling pipes, and discharged into fermenting tanks and allowed to ferment for a week; it is then distilled into weak alcohol, or, as it is termed, low-wine; it is then run through a tank filled with roasted malt; and then through generators containing beech shavings. In this way it is acetified or converted into vinegar. The purpose, he said, of adding- the roast malt was to give it an aroma and flavor that nothing else would give it. He also admitted it gave'color to the vinegar; that without the addition of the roast malt, the vinegar would be white, or about the color of alcohol. It was not contended that the roast malt added anything to the vinegar other than aroma, flavor and color. The vinegar so manufactured resembles malt vinegar, and was labeled and sold by the defendant as such, but it is not malt vinegar. The latter is made by the process of fermentation only. It derives its color and flavor from the fermented malt, and not otherwise, no artificial means being used for the purpose, and requires a much longer time in which to make it — being from four to six months. That of the defendant is known as distilled vinegar, does not require more than a week in its manufacture, and but for the introduction of the roasted malt, after the distillation of the fermented malt and before its acetiflcation by passing through the beech shavings, would have neither the aroma, flavor, nor color of malt vinegar. There is no material difference in the testimony on this point. Prof. Hoffman, an analytical chemist, called by the state, substantially corrobated the evidence given by Prof. Fennel as to the effect and purpose of using roasted malt in the manufacture of distilled vinegar. It would give color, and, if used in large proportions might give some aroma and flavor.

Prof. Schmidt, an analytical chemist, called by the defendant, testified from an analysis made by him, that he found no evidence of artificial coloring- matter in the vinegar. He did, however, find evidence of roasted malt having- been used. This he did not regard as a coloring matter; but was driven to admit that it not only added aroma and flavor, but also color; and that if this roasted malt had been added to the product before distillation, it would have added neither flavor, aroma nor color, and the distillation would have been perfectly white. A g-ood deal of criticism was indulged in as to what roasted malt, as used by the defendant in his process of manufacturing vinegar, should be called, whether caramel, burnt sugar or converted sugar. He regarded it more properly as “inverted sugar. ” But it was not a question of terminology, but as to its effect as a coloring matter; and, as to this, there was little or no difference of opinion among the witnesses. It was conceded that there is no alcohol in browned or roasted malt, so that its addition could add nothing to the substantial ingredients of the- vinegar — the vineg’ar being’ a solution of acetic acid, produced by the acetifieation of the alcohol in passing through the beech shavings. On being recalled, Prof. Fennel said, that as there is no alcohol in roasted malt, the object in using it is simply coloring matter; and that every chemist would say so; and, on' being told by the attorney for the defendant, that Prof. Schmidt did not say so, he replied, “Well, he will not deny it. ” And it is worthy of notice that he was not recalled to do so. In view of this testimony it cannot, I think, be said that there is no evidence tending- to support the conviction of the defendant; on the contraiy, it seems fully to support the finding of the justice.

But it is claimed that the primary object of using roasted malt is to give aroma and flavor to the vinegar, and that color is simply an incident to the process adopted in attaining the primary end; and hence that the giving of color in this way, cannot be said to come within the meaning of the statute. But the evidence tends to show that the primary object was to give color. His purpose in using the roasted malt was a question of fact to be determined by the court trying the case. His statement as to his purpose cannot control the court, if, in view of all the evidence, the. court is satisfied that his real and principal purpose was to give color to tlie vinegar. Again, if the primary object was to give aroma and flavor, still the process adopted for this purpose was an artificial one. Distilled vinegar, as is that of the defendant, has no such aroma; it is given, if at all, by the artificial method of running the distillation through roasted malt, before its aeetification, and artificial coloring is one of the principal results; and, in such case, it is not material whether color or aroma was the primary object, both being attained by artificial means. The process adds no substantial ingredients to the vinegar; for neither aroma, flavor nor color can be said to be substantial ingredients of any product. The}^ are not susceptible of analysis, and are merely perceived' by the aid of the senses.

The plaintiff in error in support of his contention, relies largely upon Ammon v. Newton, 50 N. J. L., 543. The case arose upon a conviction of Ammon under a statute of that state, making it an offense for any one to have in his possession for the purpose of sale, “oleomargarine that is colored, stained or mixed with annotto, or any other coloring matter or substance'.” It appeared by the plea of the defendant, and was admitted by the state, that cotton seed oil, a nutritious vegetable substance, formed about one-fifth of the product called oleomargarine, and was used in its manufacture, not simply for the purpose of coloring the product, but as one of its substantial ingredients. The court, applying the rule noseitur a sociis, held that the language “or other coloring-matter” extends . only to coloring substances that resemble “annotto;” substances used merely, or chiefly, for the same purpose, annotto being used only as a coloring matter; and that “the language cannot with propriety, be interpreted so as to include materials employed chiefly to make up the substance of the compound, and which impart some color only as a necessary incident of their use.” The ease is clearly distinguishable from the one before us. Our statute inhibits the possession for the purpose of sale, of any vinegar containing artificial coloring matter; and is therefore broader than the New Jersey statute as to oleomargarine. And, again, as shown, the roasted malt in this case, was used not as a substantial ingredient, but only to give color, flavor or aroma, neither of which are substantial ingredients of the vinegar.

The construction asked to be given this statute would permit a manufacturer to run distilled vinegar through roasted apples, and, by thereby imparting to it the color and aroma of cider vinegar, sell it in the market as such. And this, we understand, was claimed in the court below. But the purpose of this statute was, we think, to protect the public against such deceptions. Much is claimed from the fact that it was admitted on the trial that the vinegar of the defendant was whole-; some, and that he did not intend to deceive anyone by using the roasted malt, and labeling and selling his product as “Malt Vinegar.” But this is wholly immaterial. It matters not what his intentions may have been. The tendency of such devices is to deceive the public; and the statute was enacted to afford it protection therefrom. Such a statute is clearly within the proper exercise of the police power of the state. Every one has the right to distinguish for himself what an article of food is, and have the means of judging for himself its quality and value. Palmer v. The State, 39 Ohio St., 236. Powell v. Commonwealth, 114 Pa. St., 265; Powell v. Pennsylvania, 127 U. S., 678.

In Powell v. Commomwealth, the act of the legislature of Pennsylvania prohibiting the manufacture and sale of oleomargarine or keeping the product with intent to sell, was held to fall within the police power of the state — a power held to include the making of all “wholesome and reasonable” laws, not repugnant to the constitution, that the legislature majr judge to be for the good and welfare of the commonwealth and its people. It was offered on the trial of the case to show by experts that oleomargarine is a wholesome article of food. This was rejected. Error having been assigned as to this, the court said, “The mere fact that experts may pronounce a manufactured article, intended for food, to be wholesome or harmless, does not render it incompetent for the legislature to prohibit the manufacture and sale of the article. The test of the reasonableness of a police regulation, prohibiting the making and vending of a particular article of food, is not alone whether it is in part-unwholesome and injurious. If an article of food is of such a character that few persons will eat it, knowing its real character; if at the same time, it is of such a nature that it can be imposed upon the public as an article of food which is in common use, and against which there is no prejudice; and if, in addition to this, there is probable ground for believing- that the only way to protect the public from being- defrauded into the purchasing of the counterfeit article for the genuine, is to prohibit altogether the manufacture and sale of the former — then we think such a prohibition may stand as a reasonable police regulation, although the article prohibited is in fact innocuous, and although, its production might be found beneficial to the public, if in buying it they could distinguish it from the production of which it is the imitation. ’ ’ Citing State v. Addington, 77 Mo., 110. The case may be regarded as a somewhat extreme one; but it was affirmed on error by the supreme court of the United States in Powell v. Pennsylvania, supra; and is valuable as illustrating the extent of the power possessed by the legislature of a state over such subjects, when exercised to prevent deception and fraud in the manufacture and sale of an article of food. There can, as we think, be no question as to, the validity of our own statute to prevent the adulteration of vinegar. A statute of the state of New York, not only in substance but in language like our own, has recently been sustained by the court of appeals of that state. People v. Girard, 39 N. E. Rep., 823. In replying to the argument that the law is -an interference with a vested right, Pinch, J., in delivering the opinion .said, “Sometimes it — the argument — is pertinent and weighty, but in this case it is neither. It becomes the assertion of a vested right to color a food product so as to conceal or disguise its true or natural appearance; in plain words, a vested right to deceive the public.”

Judgment affimned.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Lewis et al. v. Bancroft.

      Jicstice of peace — Jurisdiction as to bill of exceptions.

    Unless the party requiring time to prepare a bill of exceptions in a trial before a justice of the peace, informs the justice during the trial that he requires such time, and the justice thereupon ax^points a time when the same shall be settled and signed, not more than five days from the day of trial, the justice loses jurisdiction, and cannot thereafter within the five days, on application of the party, sign and allow such bill of exceptions.
    (Decided May 14, 1895.)
    Error to the Circuit Court of Portage county.
    Henry Bancroft brought an action against Addison Lewis and Mary Lewis for the recovery of fifty dollars before a justice of the peace. Trial was had and„ the justice instructed the jury to bring in a verdict for the defendants, which was done. After the entry of judgment on the docket on the second day of October, 1891, the docket entries are as follows: “Plaintiff gives notice to file bill of exceptions ; no time agreed upon. October 6, 1891, plaintiff appeared by his attorney and gives notice that he would file a bill of exceptions, October 7, 1891, at 5 o’clock p. m.
    “October 7, 1891, 5 o’clock p. M., plaintiff appeared by his attorneys and filed the following bill of exceptions. Attorney for defendant not present. ” Then follows a bill of exceptions signed by the justice of the peace.
    On petition in error the court of common pleas reversed this judgment and retained the case for trial, as.upon appeal, to which defendants excepted. Plaintiff filed his petition in the common pleas, and defendants failing to plead, a jury was waived, trial had to the court and judgment rendered in favor of plaintiff for the sum of forty dollars and costs.
    Thereupon defendants below filed their petition in error, claiming that the court of common pleas erred in reversing the judgment of the justice of the peace, and as ground of error alleged that the pretended bill of exceptions was not allowed by the justice so as to make it a- part of the record. The circuit court affirmed the judgment, and thereupon a petition in error was filed in this court to reverse the judgment of the circuit court, as well as the judgment of the common pleas, and to affirm the judgment of the justice of the peace.

      George P. Hunter, for plaintiffs in error.

      B. A. Herthiek, for defendant in error.
   By the Court.

Section 6565, Revised Statutes, provides as follows : “In all cases before a justice of the peace, whether tried by a jury or by the justice, either party shall have the right to except to the opinion of the justice upon any question of law arising during the trial of the cause; and when either party shall allege such exception, it shall be the duty of the justice to sign a bill containing such exceptions, if truly alleged, with the point decided, so that the same may be made a part of the record in the cause; and whenever either party during the trial shall require time to prepare his bill of exceptions, the justice shall appoint a time when the same shall be settled and signed, not more than five days from the day of trial.”

The docket entry does not show that plaintiff below during the trial, or even at the close thereof, required time to prepare his bill of exceptions, and no time was appointed by the justice when the bill of exceptions should be settled and signed. In such case the justice has no further jurisdiction after the close of the trial and the departure of the parties, to afterward settle and sign a bill of exceptions, and a bill of exceptions so signed and filed does not become a part of the record,and should be disregarded by the reviewing court. Without the bill of exceptions there was no error in the judgment of the justice of the peace, and that judgment should have been affirmed. The judgments of the circuit court and of the court of common pleas, are therefore both reversed, and the judgment of the justice of the peace affirmed.

Section 6565 was again amended, 90 Ohio Laws, 358, but this opinion is based upon the statute as it stood before said amendment.

Judgment reversed.


author: Shacjck, J.

text:
    The State ex rel. v. Bargus et al.

      Public support of the poor — Infirmary directors — Laws of general nature defined — Constitutional law — Invalidity of act of May 14, 1894 (Ohio Laws, vol. 91, p. 287), determined.

    1. Laws providing for the public support of the poor are'of a general nature.
    2. An act by which the general assembly attempts to exempt counties from the operation of general laws on account of trivial differences in population is not of uniform operation throughout the state.

      3. The act of May 14, 1894, to amend section 957 of the Revised Statutes (Ohio Laws, vol. 91, p. 237), is repugnant to section 26, article 2, of the constitution.
    (Decided June 11, 1895.)
    Mandamus.
    The relators are the qualified aud acting- infirmary directors of Huron county, and the defendants are the commissioners of said county. The petition alleges the refusal of the defendants to perform certain duties enjoined upon them by the general statute, and admits that they are not required to perform such duties if “An act to amend section 957 of the Revised Statutes as amended May 1, 1894,” passed May 14, 1894, is valid. Insisting- that the act is void, the relators pray for a writ of mandamus commanding the defendants to perform the specified duties enjoined by the general law.
    The act is as follows:
    “AN ACT
    “To amend section 957 of the Revised Statutes of Ohio, as amended May 1, 1894.
    “Section 1. Be it enacted by the General Assembly of the State of Ohio, That section 957 of the Revised Statutes of Ohio, as amended May 1, 1894, be amended so as to read as follows:
    “Sec. 957. In every county in which there is a county infirmary, there shall be a board of infirmary directors, composed of three persons, one of whom shall be chosen every year, and shall hold his office for three years, commencing on the first Monday in January next after his election. They shall be chosen by the electors of the county, unless part of the county is not taxed for the support of the country infirmary, in which case they shall be voted for only by residents of the territory so taxed; provided, however, that in counties which by the last federal census had, or which by any subsequent federal census may have a population of not less than 31,940 nor more than 31,960, and in counties which by the last federal census had, or which by any subsequent federal census may have a population of not less than thirty-five thousand four hundred (35,400) nor more than thirty-five thousand five hundred (35,500), no infirmary directors shall hereafter be elected, and the terms of those now in office shall expire on the first Monday in January, 1895. And in all such counties the board of county commissioners shall, at the expiration of such terms, become the successor of the board of infirmary directors, and shall perform all the duties, have the same powers, and be subject to the same obligations as devolve by law upon infirmary directors in counties where such boards continue to exist.
    “Sec. 2. That said section 957, as amended May 1, 1894, be and the same is hereby repealed, and this.act shall be in force from and after its passage.
    “Passed May 14, 1894.”
    The portion of section 957 as amended preceding the proviso, is the general statute upon the subject. The proviso attempts to prevent the operation of the general statute in Huron and Erie counties, they being the only counties in the state, whose populations at the last federal census came within the limits designated in the act. The amendment of May 1, 1894, was made with the object of preventing the operation of the general statute to Huron county; and by the amendment of May 14,1894, it was attempted to create a like exception as to Erie county.
    The cause is submitted on a demurrer to the petition.

      8. A. Wildman, for relator.
    The constitution provides as to courts of common pleas that their jurisdiction shall be fixed by law. It provides as to county officers that the general assembly shall provide “by law” for their election, that commissioners of counties, the trustees of townships and similar boards shall have such power of local taxation for police purposes, as maybe prescribed bylaw; that county officers may be removed, in such manner and for such cause as shall by prescribed by law. Kelley v. The State, 6 Ohio St., 272; Cooley’s Const. Lim., star paging, 391; Miller v. Kister (Cal.), 8 Pac., 814; In re Raun St. (Pa.) 19 Atl., 219; Ayres Appeal, 122 Pa. St., 266; Costello v. Wyoming, 49 Ohio St., 208; State ex rel. v. Ellet, 47 Ohio St., 94; Falk Ex parte, 42 Ohio St., 638.
    If no other county can in the future come within its operation without doing violence to the manifest object and purpose of its enactment and to the clear legislative intent, it is a local and special act, however strongly the form it is made to assume may suggest its general character. State v. Pugh, 43 Ohio St., 12; Bronson v. Oberlin, 41 Ohio St., 481; Fields v. Commissioners, 36 Ohio St., 481; Edmonds v. Herbrandson, 50 N. W. Rep., 970; State v. Hammer, 42 N. J. Law, 439; Nichols v. Walter, 33 N. W., 800; Appeal of Ayres, 122 Pa. St., 266; People v. R. Co., 23 Pac. Rep., 303; In re Washington St. (Pa.), 19 Atl., 219; State v. Boyd, 19 Nev., 43; Closson v. Trenton, 48 N. J. Law, 438; Bray v. Hud

      son Co., 50 N. J. Law, 83; City of Philadelphia v. Westminster Cem., 162 Pa. St., 105; Township of Lodi v. State (N. J.) 18 Atl., 749; Utsey v. Hyott, S. C. Y., 9 S. E., 338; State v. Summers’ Point (N. J.), 18 Atl., 694; Clark v. City of Cape May (N. J.), 14 Atl., 581; State ex rel. v. Bradshaw(N. J.), 27 Atl., 939; Vermont L. & T. Co. v. Withed, 49 N. W., 318; Endlich on the Interpretation of Statutes, section 521; State ex rel. v. Smith, et al., 48 Ohio St., 218.
    The constitution provides that the general assembly shall provide, by law, for the election of such county and township officers as may be necessary, and that no appointing power shall be exercised by the general assembly, except as prescribed in this constitution, and in the election of United States senators. It is believed that the latter of these provisions has been violated by the act in controversy.
    The infirmary directors nowin office were elected by the people, under general law, presumably because of their fitness for the duties pertaining to the position. The legislature, without prescribing by law any cause for their removal, attempts to make their positions vacant by shortening their terms, and then to fill the vacancies so unconstitutionally created, by the appointment of three other gentlemen now holding the office of county commissioners. State ex rel. v. Staley et al., 5 C. C. Rep., 602; Kirker v. Cincinnati, 48 Ohio St., 507.
    Where the term of an office is fixed and limited by the constitution, there is no power in the general assembly to extend the term or tenure of such office beyond ■ the time so limited. State ex rel. v. Brewster, 44 Ohio St., 589; State ex rel. v. Raine, 49 Ohio St., 580.

      Andrews Bros., for relator.
    The legislature has designated the act in its marginal references as referring to Huron and Erie counties. State v. Pugh, 43 Ohio St., 98.
    Even admitting that classification of counties on a reasonable basis may be possible under the constitution — that attempt by this law is unwarranted and unreasonable, and is, therefore, illegal and void. Costello v. Wyoming, 49 Ohio St., 202; Nichols v. Walter, 37 Minn., 264; State v. Hammer, 42 N. J. Law, 435; Bronson v. Oberlin, 41 Ohio St., 476; Carr v. Carrollton, 8 C. C. Rep., 1; State v. Judges, 21 Ohio St., 11; State v. Hipp, 38 Ohio St., 199.
    It therefore, being apparent that the law in question is local and special in its operation, if it is general in its nature, it falls within the inhibition of section 26, article II, of the constitution, which provides that all laws of a general nature shall' have a uniform operation throughout the state. The nature of a statute depends upon the character of its subject matter; if that be of a general — as distinguished from a local or special nature — existing in every county throughout the state, then the law is one of a general nature. Lehman v. McBride, 15 Ohio St., 605; Kelley v. The State, 6 Ohio St., 269; State v. Powers, 38 Ohio St., 54; Costello v. Wyoming, 49 Ohio St., 202; State v. Ellet, 47 Ohio St., 90; Falk ex parte, 42 Ohio St., 638; People v. Supervisors, 43 N. Y., 10; 68 N. Y., 381; 96 U. S., 238; Darling v. Rogers, 7 Kan., 592; Robinson v, Perry, 17 Kan., 288.
    We submit that the legislature has established by general laws, a system, operating throughout the entire state, for the care of the poor; and in this system, the office of infirmary director is an essential factor in every county where an infirmary has been established. This, being found, the law is of a g’eneral nature. State ex rel. v. Shearer, 46 Ohio St., 273; Grove et al. v. Leidy et al., 2 Ohio, 243; State v. Powers, 38 Ohio St., 54. When once established, the general infirmary system immediately becomes operative. All have an equal right to the provisions and purposes-there contemplated. Heck v. State, 44 Ohio St., 536; Driggs v. State, 51 Ohio St., 37.
    To enact a law giving to the counties of the state, generally, this protection, but denying it to Huron and Erie counties, would be to deny to the citizens of Huron and Erie counties the privileges, protections and guaranties conferred in this respect upon citizens of the rest of the state. McGill v. The State, 34 Ohio St., 237; Grove et al. v. Leidy et al., 2 Ohio, 243.
    We claim that the duties of the board of county commissioners to create and' oversee this trust, and to review the acts of managing directors, as inspectors of books, accounts and official conduct, is incompatible with the position of managing director. State of Ohio ex rel v. Taylor, 12 Ohio St., 130.
    That the law in question is in conflict with arti1 ele II, section 26, of the constitution, appears from its general effect in yet another, but not less vital particular. It has the effect to repeal (not in terms, but by necessary operation) in Huron and Erie counties only — certain laws for the care of the poor — which laws are clearly of a general nature; so that, even if the act itself — abstractly —were not general in its nature it is void for the above reason. 47 Ohio St., 99; State v. Ellet, 47 Ohio St., 90.
    The term of office is fixed, and compensation is provided for tlie officers for such term, in accordance with article X, section 2, and article II, section 20, of the constitution of Ohio. Such officers receiving a per 'diem salary. Revised Statutes, section 968; Commonwealth v. Butler, 99 Pa. St., 512; Anderson’s Law Dict., 914.
    . As to what constitutes an office, see State v. Brennan, 49 Ohio St., 33; State v. Kennon, 7 Ohio St., 556; State ex rel. v. Holbrook, 5 C. C. Rep., 602 ; 20 Johns., 492; Kirker v. Cincinnati, 48 Ohio St., 507.
    The power here sought to be'exercised, is one fraught with the greatest possibilities of public mischief and abuse. Van Riper v. Parsons, 40 N. J. L., 1; 18 Albany Law Journal, 407.
    If the general assembly can legislate out of office one set of administrative officers, and legislate in another set; whether officers elected by the people shall serve the people, might depend upon the caprice or the political complexion of the legislature. 5 C. C., Rep., 602.

      L. C. laylin, for respondents.
    A local act is necessarily repealed by implication, by the subsequent passage of another law of a general nature, on the same subject matter. Ex parte Van Hagen, 25 Ohio St., 431.
    That a law may be upon a general subject and not be a law of a general nature, has been frequently held by this court. Cass v. Dillon, 2 Ohio St., 610; Cricket v. The State, 18 Ohio St., 22; The State v. Judges, 21 Ohio St., 1; Hart v. Murray, 48 Ohio St., 605; Ohio v. Covington, 29 Ohio St., 102; Die State v. Baughman 38 Ohio St., 455; McGill v. The State, 34 Ohio St., 228; The State v. Kendle, 33 W. L. R., 83; The State v. Commissioners, 35 Ohio St., 458; The State v. Shearer, 46 Ohio St., 275; The State v. Nelson, 32 W. L. B., 412.
    Attention is also called to decisions rendered by the courts of other states, whose constitutions contain provisions similar 'to section 26, article II, of our constitution, State v. Hitchcock, 1 Kan., 178; Beach v. Lehey, Treas., 11 Kan., 23; Gentile v. State, 29 Ind., 409; State v. Tucker, 46 Ind., 355; State v. Boone Co., 50 Mo., 317; State v. Court, 51 Mo., 83; Commissioners v. Shields, 62 Miss., 247; Smith v. The Judge, 17 Cal., 554; People v. Railroad Co., 43 Cal., 432; Brooke v. Hyde, 37 Cal., 375.
    The law under review has a uniform operation throughout the state, within the meaning of that section of the constitution. It creates certain classes of counties under the power so often exercised by the general assembly; and any act relating to all alike in the class so created may be one of general nature. The State v. Hudson, 44 Ohio St., 139; The State v. Turnpike Co., 37 Ohio St., 481; The State v. Powers, 38 Ohio St., 63; The State v. Anderson, 44 Ohio St., 247.
    Classification of municipalities, based upon population, was approved by this court in the following cases: The State v. Cappeller, 39 Ohio St., 214; Bronson v. Oberlin, 41 Ohio St., 476; The State v. Pugh, 43 Ohio St., 112; The State v. Hawkins, 44 Ohio St., 108; Marmet v. The State, 45 Ohio St., 63. In several other cases this court has held legislative enactments to be void by reason of improper classification; one class was held too limited and restrictive; another was uncertain and illusory; while in another the classification was upon the basis of sidewalk construction and was not recognized; in other cases the express terms of the classification were such that the acts must necessarily be held to apply to existing municipalities only. The State v. Pugh, 43 Ohio St., 98; The State v. Smith, 48 Ohio St., 211; Costello v. Wyominy, 49 Ohio St., 202.
    The whole of article XIII of the constitution ■ was intended to apply only to corporations proper, private and municipal. Hamilton Co. v. Mighels, 7 Ohio St., 109; Hunter v. Mercer Co., 10 Ohio St., 520; The State v. Cincinnati, 20 Ohio St., 37; The State v. Powers, 38 Ohio St., 62.

      J. B. McICnight, prosecuting attorney, for respondents.
    Courts when called upon to determine the constitutionality of an act of legislation, will resolve all reasonable doubts in favor of the legislation, and declare the act valid, unless it is, in its judgment, plainly unconstitutional. State ex rel. v. Cincinnati, 20 Ohio St., 33, 34; Cooley's Const. Lim., 4th ed., 220-2-3-4-5; Gilpin and Wife v. Williams et al., 25 Ohio St., 294; Western Union Telegragoh Co., v. Mayer, Treas., 28 Ohio St., 539.
    Infirmar}” directors are county officers. State ex rel. v. Stewart, 26 Ohio St., 216; State ex rel. v. Breman, 49 Ohio St., 38.
    Turning to the constitution we find that section 1, article X, reads:
    “The general assembly shall provide, bylaw, for the election of such county and township officers as may be necessary. ’ ’ Thus making the legislature the sole judge as to what officers are necessary to carry on the county affairs of the several counties in the state, giving it the discretionary power to create such offices as, in its judgment, will benefit all or any particular county in the state. The legislature has repeatedly recognized and ex-ercisecl this right, and discretionary power vested in it by the constitution which in turn, has been approved by this court. State ex rel. Flinn v. Auditor of State, 7th Ohio St., 334; State ex rel. v. Hawkins, 44 Ohio St., 114; The State v. Kinninger, 46 Ohio St., 574; State ex rel. Fay v. Archibald, Sheriff, 51 Ohio St., 1; State ex rel. v. Hyde, 28 N. E. (Ind.), 186, 188.
    If this act is of a local nature, ■ it does not come within the inhibition of section 26, article II, of the constitution. Special legislation upon a subject matter in its nature local is not prohibited by section 26, article II, of the constitution, notwithstanding the subject matter is the subject of a general law. A law is not necessarily of a general nature by reason simply of its being upon a general subject. State ex rel. v. Shearer et al., 46 Ohio St., 275.
    That the act in question is in its nature local, we have no doubt. Whether a law is of a general or special nature depends, in a measure, upon the legislative purpose discoverable in its enactment. State ex rel. v. Shearer et al., 46 Ohio St., 282; Mc Gill v. State, 34 Ohio St., 241; Ruffner v. Commissioners, 1 Disney, 202.
    The most obvious principle of classification is that of population. That classification by population is a proper method of classification, is too well settled in this state to need any citations. Costello v. Wyoming, 49 Ohio St., 209; State v. Mortland, 20 Atl. (N. J.), 673; Cass v. Dillon, 2 Ohio St., 618; Mc Gill v. State, 34 Ohio St., 246 ; Cricket ex rel. v. State, 18 Ohio St., 9; State ex rel. v. Judges, 21 Ohio St., 10; Probasco v. Paine, Auditor, 50 Ohio St., 390.
   Shacjck, J.

The question of first importance is whether this act meets the requirement of section 26 article II of the constitution that ‘ ‘all laws of a general nature shall have a uniform operation throughout the state.”

The briefs of counsel present in a strong light the real and apparent conflict of decision and comment upon the application of this section to statutes said to be repugnant to its provisions. But a number of the cases cited may be dismissed because they are really determined by the consideration believed to be due to other provisions of the constitution relating specially to the various sub-1 jects of the legislation whose validity was questioned; such as those relating to grants of corporate power and those enjoining upon the general assembly the duty of establishing and maintaining public schools.

Still, it would be difficult if not impossible, to reconcile all the conclusions which have been reached concerning the effect of this section. Care seems to have been taken to avoid exact and comprehensive definitions of the phrases “general nature” and “uniform operation;” and from a course of interpretation intended to leave questions of conformity to be determined with respect to different statutes as they might arise, it has resulted that the apparent value of the legislation has sometimes affected. the views that have been entertained respecting its validity. There may also be observed the effect of cautionary suggestions and admonitions supposed to be promotive of conservatism, if not helpful in the discovery of the truth nor likely to contribute to harmonious interpretation. In various phrases it has been said that the members of the lawmaking bodies have knowledge of the limitations upon their power and are mindful of their duty not to transcend them. Harmony is not likely to be found among conclusions which result from the. application of a rule of inconstant force. Some contradictory conclusions upon this subject are the play of the balance in which deference to the constitution has been weighed against deference to the general assembly. Of these cautionary rules one, however, is useful: Acts of the g-eneral assembly should not be adjudged void upon mere doubts as to their validitjr.

But it does not appear to have been advertently held in any case, that this section belongs to the class of constitutional provisions which it has sometimes been thought safe to regard as directory, or more accurately — advisory, merely. On the contrary, there seems to be general acquiescence in the view expressed by Scott, J., in Kelly v. State, 6 Ohio St., 269, where he says that this section is “a general, unqualified and positive prohibition or limitation of legislative power, forbidding the giving of a partial operation to any law of a general-nature, or — in its own affirmative terms— requiring- that a uniform operation throug-hout the state shall be given to all laws of a general nature.”

It is arguing in a circle to say that a law is not of a general nature because its operation is limited. It is implied in this section that there are subjects of legislation of a general nature as to which there is the imperative requirement that the operation of the laws shall be uniform and coextensive with the subjects. Those who framed and adopted the constitution used the phrase “general nature” without definition, as though its meaning were well understood. Whatever doubts may have arisen since the adoption of the constitution as to the effect of this provision when applied to statutes as a test of their validity, it is not supposed that the meaning of the phrase has changed. It is with evident propriety that counsel point to its prior and contemporaneous use in legislation, as indicating the sense in which it was employed in the constitution. Many members of the convention had been members of the general assembly, and others were entirely familiar with the course of legislation under the constitution of 1802. Unless terms which had a well understood meaning are regarded as used according to that meaning, interpretation becomes mere speculation.

In volume eighteen, Laws of Ohio, published in 1820, the acts of the general assembly were published under the titles of “Acts of a General Nature ” and “Acts of a Local Nature,” and these titles were used consistently during the thirty years following that date and preceding the adoption of the present constitution. It can hardly be doubted that in this manner these terms became familar to the people, and their meanings were determined by such familiar usage. The laws published as “Acts of a general nature” were not always of uniform operation throughout the state, for that was not required by any provision of the constitution then in force. In the adoption of section 26, article II, of the present constitution, the phrase “Laws of a general nature” was employed in the sense then familiar to designate the acts, which, as experience had demonstrated, should have a uniform operation throughout the state.

It will not aid present purposes to enter the in-' teresting field of inquiry suggested, further than to ascertain whether acts providing for public aid to the poor were regarded as of a general nature. In volume eighteen, LaAvs of Ohio, at page 208, is a republication of an act entitled £ ‘ an act for the relief of the poor,” which had been passed February 10, 1816; and at page 223 of. the same volume is a republication of an act entitled “An act to authorize the establishment of poor houses,” which had been passed February 26, 1816. Both acts are published under the general title ‘ ‘ Acts of a general nature.” There was further legislation upon this subject January 26, 1827, January 19, 1829, and March 14, 1831, and all the acts were published under the same general title .as acts of a general nature.

That this has been regarded as a subject for laws of a general nature under the present constitution, appears from the general course of legislation upon the subject. So far as we have observed, all the legislation of the state prior to the act now called in question has accorded with the general belief that the poor are always and everywhere with us.

Indeed, this act itself affords evidence that the belief continues to abide with the general assembly that laws upon this subject are of a general nature. If the subject were not general, the counties of Huron and Erie might have been named instead of described.

It is contended that the act is of uniform operation throughout the state. Counsel for the defendants, with much reason, insist that uniform operation is not necessarily universal operation. In the provision which limits its operation to counties having infirmaries, the act before us affords a convenient example of legislation that operates uniformly, though not universally. The act but for the proviso, is of uniform operation, because it operates universally where are found the conditions for which legislative provisions are made: that is, in all counties having infirmaries. But the petition shows that these counties have infirmaries, and the purpose of the act, is to exempt them from the operation of laws applicable to other counties presenting the same conditions. Uniformity of operation requires that laws shall operate in all parts of the state where are found the conditions which are the subjects of the legislation.

The case does not call upon tis to determine whether the requirement of uniform operation forbids the reasonable classification of counties upon substantial differences in population. Isolation is not classification. The appearance of general and uniform legislation sought to be imparted to the act by the figures employed in the description of these counties and the regard that is paid to changes in population which may be disclosed by a subsequent federal;census, do not at all affect the character of the act. Its validity must be determined, not by its form, but by its substance and practical operation. It provides exceptional legislation on the basis of a difference in population so trivial that no one supposes it to be the real ground of the distinction and it applies to no counties but to Erie and Huron.

With the wisdom or the policy which the general assembty has, through the provisions of this act, attempted to establish in the two counties named, we have nothing to do. If it be unwise, this section forbids its application to Erie and Huron counties except bjx a law of uniform operation throughout the state which shall affect the interests of all constituencies and thus challenge the attention and judgment of all representatives. If it he wise,-this section beneficently requires that the people of the whole state shall share in its benefits. We are aware of no decision of this court in conflict with these views.

Demurrer overruled, and peremptory writ allowed.


author: Bradbury, J.

text:
    Jenkins v. Mapes.

      Exchange of goods — Barter defined — Complete payment — When delivery must be made — Tender aud acceptance.

    1. A barter is a transaction where goods are exchanged for goods. And it is immaterial whether the goods exchanged are of the same kind and quality, or of an entirely different species, or whether mutual deliveryis had contemporaneously with the making of the contract, or delivery by one is made then, and delivery by the other is to occur afterwards.
    2. In such a transaction, where the party bound to future payment, tenders goods in discharge of his obligation, payment is not completed, and the obligation discharged, until the title to the goods tendered, passes to the creditor or obligee; nor will the title pass to the latter until he has expressly or impliedly accepted the goods.
    3. In such case the party bound to pay by a future delivery of goods, must, when he tenders them, notify the creditor, and afford him an opportunity to inspect the goods tendered, before the latter-will be held to an implied acceptance of them.
    (Decided June 11, 1895.)
    Error to the Circuit Court of Knox county.
    The plaintiff in error brought an action before a justice of the peace of Knox county, to recover the value of twenty bushels of oats that had been delivered by her to the defendant in error, to be by him consumed and shortly thereafter returned in kind to her.

      The defendant prevailed before the justice, whereupon the plaintiff appealed the cause to the court of common pleas, where the defendant again was successful; the plaintiff then took the case to the circuit court on error where the judgment of the court of common pleas was affirmed, whereupon she instituted proceeding in this court to reverse the judgments of the circuit court and that of the court of common pleas. The facts will be found in the opinion of the court.

      D. F. (& J. D. Ewing, for plaintiff in error.

      F. V. Owen and William 1L Ebons, for defendant in error.
   Bradbury, J.

The defendant in error admits that on August 30, 1881, he received from the plaintiff in error twenty bushels of oats, to be consumed by him, which shortly thereafter he was to return in kind; and he contends that soon after he had received the oats he performed his obligation by delivering to her an equal number of bushels of oats, of the same quality, as those he had received and consumed. The plaintiff in error denied their delivery, and upon this issue the parties went to trial. The transaction was not a bailment of the oats, but a sale, where payment was to be made in kind, which in law constitutes a barter.

True, a barter usually consists of an exchange of commodities differing from each other in kind, and doubtless, most frequently, mutual delivery of the respective articles occurs contemporaneously. These conditions, however, though the usual, are not necessary incidents of a barter. A transaction being equally a barter if goods of the same kind are exchanged, and delivery by one party is to be made in the future, as though they were of different kinds and delivery made simultaneously by both parties when the bargain was made. The distinguishing feature of a barter is that g-oods are exchanged for goods instead of money. And to constitute a transaction a barter, it is no more essential that the delivery should be made by both parties at the time the bargain is made, than it is necessary, in order to constitute a sale; that the price should be paid contemporaneously with the delivery of the goods, which are the subject of the transaction.

Bouvier says of barter that “It differs from a sale in that a barter is always óf goods for goods; a sale is of goods for money, or for money and goods. In a sale there is a fixed price; in a barter there is not.” Vol. 1, page 223 ; 2 Encly. of Am. and Eng. Law, 128; Massey v. The State, 74 Ind., 368; Com. v. Davis, 12 Bush. (Ky.), 240.

As the transaction constituted a barter, the defendant’s obligation was discharged if he delivered to the plaintiff twenty bushels of oats of the quality of those he had received; and this was the question over which the parties contended.

Upon the trial in the court of common pleas of the issue respecting- the return of the oats, evidence was given tending to prove that about four weeks after the defendant had received the oats, he threshed, and measuring out an equal quantity of oats similar in quality to those he had received, sent them by his step-son, a youth of about 16 years of age, to the plaintiff in payment of those he had received from her; that the boy took the oats to the premises of the plaintiff and placed them in a bin which he found in her granary, but gave no notice to her, or any one else about the premises, of what he had done; and that she had no knowledge of the return of the oats, if they were returned, until long after they had been sold or consumed. The evidence tended to prove that the granary in question contained at least two bins, one of which was used to store grain owned by the plaintiff alone, and the other used to store that owned by her and her tenant — a brother-in-law — or owned by him alone.

After the testimony was all in, her counsel requested the following propositions, among others, to be given to the jury:

“First — That in order for the defendant to establish by proof his allegations, that he delivered to the plaintiff twenty bushels of oats in full payment of the plaintiff’s claim set forth in the amended petition, he must satisfy your minds by a preponderance of evidence, that he actually presented the twenty bushels of oats to her for her inspection, and to give her an opportunity to accept or refuse to accept the twenty bushels of oats presented and offered in payment of her claim, and if such opportunity was not offered plaintiff and she did not accept said twenty bushels of oats in full payment of her claim against • defendant, the emptying of said twenty bushels of oats in a bin of oats in her grain house, in which bin there were a lot of other oats and without plaintiff’s knowledge or consent, and all of said oats were taken from said bin and disposed of before plaintiff had any knowledge or information that the defendant claimed to have emptied said oats in said bin in payment of the oats delivered by plaintiff to defendant on or about August 30, 1881, would not in law constitute a delivery of the twenty bushels of oats to her, and would not in law be full payment of the claim of the plaintiff as set forth in her amended petition, and your verdict should be for the plaintiff.

11 Second — That if they find from the evidence in this case that defendant in attempting to deliver to plaintiff twenty bushels of oats in payment of the twenty bushels of oats that the defendant received of the plaintiff on or about the 30th day of August, 1881, did, without the knowledge or consent of plaintiff, or any one else acting- for her, place twenty bushels of oats in an oats bin, in plaintiff’s grain house, .and in which bin at the time, were a lot of other oats which belonged to A. J. Berry, and that before said plaintiff had any notice or information that defendant claimed to have placed said twenty bushels of oats in said bin in payment of said oats delivered by plaintiff to defendant; said Berry took all of said oats out of said bin and converted the same to his own use, that that would not be a .delivery to plaintiff, and their verdict should be for the plaintiff.”

The court refused to give either of these propositions to the jury, to which refusal plaintiff excepted ; nor did it supply the omission in the general charge.

By declining to give the last proposition, the court left the jury at liberty to find for the defendant, if they found that he, in fact, returned the oats in controversy to her granary; although without the knowledge or consent of plaintiff, he caused them to be placed in a bin therein, which contained oats • belonging to another person, whereby the grain thus returned was mingled with that of such other person, and afterwards consumed by him before she was informed of the return. To state such a proposition is to refute it. Such a return constituted no delivery to the plaintiff. She had no knowledge of what had been done, neither was the grain deposited in a receptacle subject to her control, nor did she receive the slightest benefit from the attempted delivery. The natural result of such a delivery would be the consumption of the grain by the person into whose bin it had been placed. Upon what principle of law can this be held to exonerate the defendant? We know of none.

2. In refusing to give the first of the two propositions the jury were authorized to find for the defendant if he caused the oats to be deposited in plaintiff’s granary, in a bin containing other oats belonging to her, although it was done without her knowledge or consent.

By the terms of the contract between the oar-ties, the defendant was bound to pay in kind. There can be no payment unless the thing- tendered, be it money or goods, is accepted by the party to whom payment is due. Tender alone is not payment. It ordinarily stops the running- of interest] and, often, by statutory regulations, saves costs, but it does not discharge the obligation of the promisor or debtor.

Payment is consummated by an acceptance of the thing tendered and is incomplete until then. Property cannot be thrust upon a person without his consent, and the effect of payment is to transfer from the payor to the payee the title to the thing delivered and received.

“Payment is a mode of extinguishing obligations. It is an act calling for the exercise of will, of consent. To constitute a payment, money or some other valuable thing must be delivered by the debtor to the creditor for the purpose of extinguishing the debt, and the creditor must receive it for the same purpose.” 18 Encly. of Am. and Eng. Law, 150; Kingston Bank v. Gay, 19 Barb. (N. Y.), 459.

“Payment, in its largest sense, is the actual accomplishment of the thing that the party obliges himself to give, or to do, whatever that may be, although, in our acceptation, it is ordinarilyconfined to money engagements, and it is therefore the natural manner in which obligations are extinguished. When the obligation is to give something, the payment is accomplished when the property in the thing’ to be given is actually transferred to the creditor; and of course, in order to constitute the transaction a payment, there must be both a delivery by the debtor and an acceptance by the creditor, with the purpose on the part of the former to part from, and of the latter to accept of, the immediate ownership of the thing passed from the one to the other. In a payment, we ordinarily look only to theactof the party making it; but yet its legal import is an act in which the debtor tenders and the creditor accepts that which is offered. ” Thompson v. Kellogg, 23 Mo., 285; Vancleave v. Beach, 110 Ind., 269.

Acceptance of the thing tendered doubtless may be inferred from circumstances; but in order to hold a person to an implied acceptance, knowledge that the tender was made or the delivery attempted should be shown, unless under some peculiar and special circumstances or by some established custom, the obligee is bound to possess such knowledge; no such conditions or custom appear in the case under consideration. Before the plaintiff could rightfully be held bound to the consequences which follow even from a tender, she was entitled to an opportunity to inspect the thing- tendered. How else could she ascertain whether it was of the quality and quantity which, by the terms of the contract, she was entitled to receive ? If the quality of the thing- tendered was inferior to that which the obligor was bound to render to her, or if the weight or measure was less than was her due, she was at liberty to rej eet it and the transaction would not constitute even a tender. In the very nature of things there can be no tender of a thing-unless the person, to whom the tender is made, has by himself or agent, knowledge of it. A tender is necessarily included in every payment; payment occurs whenever the tender is accepted. Tender is the act of the obligor, payment the joint act of the obligor and the obligee. If a transaction does not embrace every act essential to constitute a tender, it necessarily falls short of payment.

If in the case before us the defendant in error returned oats in the quality and ■ quantity he had received, and without notice to the plaintiff in error, deposited them in her granary, still the transaction did not fill the measure of the obligation he had incurred to her. This obligation, as we have already seen, was to pay in other oats of similar quality. He was not authorized to determine whether a sufficient quantity of oats of the proper quality had been returned. The rights of the plaintiff in error in this respect were equal to his rights. His duty was to offer, hers to accept or reject what he offered. He was bound to afford her an opportunity to accept or reject what he tendered in satisfaction of of his obligation; that she might exercise her rights in this respect understandingly, she was entitled to inspect the oats, both as regarded their quality and quantity. Not only this',- but if the grain became her property, which it would do if the transaction was a payment, it was thereafter at her risk, and entitled to her care. In this view alone it is only reasonable that she should be advised of it, that the care necessary for its preservation could be given by her. If the defendant neglected to cause the plaintiff to be notified that the oats had been placed in her granary, he failed to do that which was necessary to constitute the transaction a payment, and must abide the consequences.

Judgment reversed and causes remanded for a new trial.


author: Spear, J.

text:
    Kernohan v. Manss, et al.

      Mortgage security for promissory notes — Assignment of mortgage to secure forged notes — Subsequent sale by mortgagee of genuine note before mattirity — On foreclosure, lien of holder of genuine note preferred to that of holder of mortgage.

    M. executed to eight persons, a mortgage to secure eight promissory notes, made to them respectively. The notes were delivered to the several mortgagees, and the mortgage to McG., one of the mortgagees. It was then duly recorded. After record, without objection by the others, McG. took possession of the mortgage and of three of the notes belonging to other mortgagees, for safe keeping-. Afterward, and before maturity of any of the notes, McG., claiming to be the owner of the mortgage and of all the notes, for a valuable consideration, received of K., assigned and delivered to him the mortgage and forged copies of all of tile notes, with forged indorsements on each, except that on the note purporting to be made to him the indorsement was genuine. The assignment purported, also, to transfer the notes secured by the mortgage. McG. retained in Ms own possession the genuine notes. Afterward, but before the maturity of the nóte made to McG., he, for a valuable consideration, indorsed and delivered the genuine note to M. and M.. informing them that the note, with others, was secured by mortgage on certain real estate. Before taking the note, M. and M. had the records examined and found that the statements of McG. respecting the mortgage security were correct. He also stated that he, with the consent of the other mortgagees, was holding the original mortgage for himself, and as custodian for the others. They did not ask to see the original mortgage, and did not see it. K. and M. and M. acted in entire good faith, neither having a suspicion that a fraud was contemplated by McG.

      Held: On foreclosure of the mortgage, the debt to M. and M. is entitled to preference over that of K.
    ( Decided June 11, 1895.)
    Error to the Circuit Court of Hamilton county.
    The action below was a proceeding in the probate court of Hamilton county for the sale of lands of Gano Martin, deceased, to pay debts, in which the plaintiff in error and the defendants in error were cross-petitioners, each claiming to hold a lien prior to that of the other upon the lands in question. That court found in favor of John and Louis Manss, from which Kernohan appealed. On the trial in the common pleas the following undisputed facts appeared, viz.: *
    On January 1, 1879, Gano Martin, the then owner of the real estate sold in this action, being in feeble health, and desiring to make some sort of settlement of his estate before he died, providing as well for his children and widow as for certain .creditors (amongst whom was one William R. McGill, to whom he was then indebted in the amount of 87,602.72), executed a mortgage deed covering his said real estate; the consideration named was 816,113.69; the grantees were said McGill and seven others. The mortgage was conditioned to secure the payment of eight promissory notes, each dated January 1, 1879, payable five years after date, with 8 per cent, interest, payable annually, except one on which no interest was payable until after Gano Martin’s death.
    The mortgage deed was then delivered to McGill, with the consent of the other mo rtgagees, he (McGill) stating he'would put it in his safe for safe keeping. It was left for record January 20, 1879, with the recorder of Hamilton county, and duly recorded, and thereafter, without objection by the other mortgagees, remained in the possession of said McGill until delivered to said Kernohan, as hereinafter stated. The note for $7,602.72 was also delivered to McGill at the same time, and the notes to order of three other mortgagees were also delivered, unindorsed, to McGill, at the same time, for safe keeping. Some time afterwards, one of the mortgagees (George Martin) sold his note to William R. McGill, and, so far as appears, McGill never owned, or had any interest in any of the other notes. The note for $7,602.72 remained in the possession of McGill until delivered to John and Louis Manss, as hereinafter stated.
    On the 8th day of February, 1879, being prior to the maturity of the notes secured by said mortgage, Robert Kernohan made a loan of $11,000 to McGill, who, amongst other collateral, transferred and assigned to Kernohan the said mortgage, and what purported to be all the notes secured thereby. At the time of the transfer McGill was the owner and holder of the genuine note for $7,602.^2, secured by said mortgage. ' This transfer was made in the following manner: Before the payment of the $11,000, McGill produced to Kernohan, and his attorney, the original mortg’ag’e deed from Gano Martin, and the following assignment was indorsed thereon:
    “For value received, I hereby assign and transfer to Robert Kernohan, his representatives and assigns, the within mortgage and the notes secured thereby.
    “February 8, 1879. William R. McGill.”
    The assignment was then and there signed by William R. McGill. At the same time eight certain papers answering in form to the eight notes described in the mortgage, including one for $7,602.72, were produced by said McGill as the original genuine notes secured by said mortgage; the said papers were at the time they were produced, indorsed in blank with the name of the payees thereof, except that for $7,602.72, which was indorsed as hereafter stated. At the same time he signed the said assignment on the back of the mortgage, McGill indorsed each of said papers (including that for $7,602.72 drawn to his own order, which hitherto had been unindorsed), with his own signature, and the words “protest waived,” as appears thereon; and thereupon the said papers and mortgage were delivered to Kernohan, with the other collateral, and said sum of $11,000 paid. The mortgage so assigned and delivered was the genuine mortgage deed executed by Gano Martin and wife; but the papers purporting to be the notes secured thereby, and so delivered and indorsed by said McGill, are each and everyone of them forgeries' (except the indorsements of McGill thereon), though they were delivered to Kernohan by McGill as genuine.
    Kernohan received the mortgage, and what purported to be the real notes, as above, duly indorsed and delivered to him, in good faith and for value, supposing said notes to be genuine, and they remained in his possession until after the death of McGill, which took place July 2, 1884, and until this action was begun. Kernohan did not know, or have any cause to know of such forgery, and that said notes were not genuine, until after the death of McGill.
    Interest on said loan of $11,000 was paid by McGill up to his death. The amounts realized from the other collateral, together with any amount that has been, or may be ordered, paid to him in this case, will not discharge said debt of $11,000. The estate of said Gano Martin is insolvent. The assignment on the mortgage was not left for record or entered until April 25, 1884.
    On or about April 1, 1879, being after the transaction with Kernohan, but prior to the maturity of said note for $7,602.72, the defendants,’John and Lewis Manss, loaned William R. McGill the sum of $4,000, taking his note dated May 8,' 1879, for same, McGill at that time transferring to them by indorsement and delivery, as collateral for said loan, the original genuine note for $7,602.72, made by Gano Martin’ which notwithstanding his transaction with Kernohan, he had retained possession of. John and Louis Manss did not learn until a week or ten days after McGill’s death of any other note purporting to be of the amount of the note so indorsed and delivered as collateral. At the time of the transaction between McGill and the Manss brothers, McGill stated that the note was secured by a mortgage; that it was given to secure other notes, to the other pajees, and that he, by and with the consent of all the other mortgagees, was holding the mortgage for himself and as custodian for the other holders of notes secured by the mortgage, and also told them that he thought the mortgage notes safe. Before loaning the money they had an examination made of the records, which showed that the mortgage was as represented, and that there was no other mortgage against the property; they did not ask McGill to let them see the mortgage deed, nor did they at any time see it, but relied upon McGill’s statement that he had it.
    They, before and after the maturity of the note, made other advances to McGill .to the extent of $11,300 additional to.said sum of $4,000, and also received other collateral, it being agreed with McGill at the time said other advances were made, that the note for $7,602.72, together with the other collateral, should stand as security for all the advances. Some of the other collateral were known by Manss Bros, to be the mortgage notes ; but in no instance did they require the production of the mortgage deed securing the same, again relying upon McGill’s statements to them. They have not been able to realize upon any of the said other collateral, as in each case the mortgage notes, and -other instruments, are claimed to be forgeries.
    There is no question as to the good faith of either Kernohan or the brothers Manss.
    Upon these facts the court held that John and Louis Manss were the owners and holders of the genuine note for $7,602.72, given by Martin to McGill, that it was secured by the mortgage, and was the first lien and decreed accordingly. On error the circuit court affirmed this judgment, and Kernohan now asks that those judgments be reversed.

      Drausvn Wulsin, and Frank C. Suire, for plaintiff .in error.
    A mortgage does not secure a note, or other evidence of indebtedness named in it, as such, but secures the debt or promise to repay, of which the mortgage equally with the note is an evidence. This is made clear when we consider that the mortgagee can foreclose or maintain ejectment, even though the note be barred by the statute of limitations. Fisher's Exrs. v. Mossman, 11 Ohio St., 42; Nichols v. Briggs, 18 S. Car., 484. Also that the mortgage is valid, and secures the debt even though the note or other evidence of such debt, recited in the mortgage, be changed. Nesbit v. Worts, 37 Ohio St., 378; Kuhns v. McGeogh, 38 Ohio St., 468; Choteau v. Thompson, 3 Ohio St., 427; Pattersons. Johnson, 7 Ohio, parti, 227; Bailey v. Smith, 14 Ohio St., 410; Richardson v. Wright's Estate, 2 N. E. Rep., 603; Kimberly’s Appeal, 5 Cent. Rep., 460; Bank v. Manufacturing Co., 96 N. Car., 298; Hoffner s. Wilhelm, 68 La., 510. Also that the mortgage is enforceable, though the note be void, because the consideration therefor was illegal, or because of a fraudulent alteration therein. Raquel v. Roll, 7 Ohio, part 2, 70; Williams v. Englebrecht, 37 Ohio St., 383; Smith, Admr., v. Smith et al., 2 S. E. Rep., 78; Plyler v. Elliott, 19 S. Car., 257; McCaughlin v. Williams, 15 S. Car., 505. Also that the mortgage is valid and enforceable for the mortgage debt, even though the obligor of the bond described in the mortg-age has received a certificate of discharge under the bankrupt act. Childs v. Childs, 10 Ohio St., 339; Stewart v. Anderson, 10 Ala., 504; Stedman v. Garrett, 18 Vt., 346.
    The doctrine laid down by these cases all rests upon the principle that the mortgage really secures the debt, of which the note, or other personal security is but one evidence; it secures the substance, not the proof of the substance; it secures the promise to repay itself, not the evidence of such promise. Kernohan, by the transaction of February 8, 1879, became the owner of the note, the mortgage debt and the mortgage security. McGill parted with all his interest in the note, debt and mortgage security to Kernohan. Kernohan v. Durham, 48 Ohio St., 1; Daniels Neg. Instruments, sections 748, 748a; Jones on Mortgages, section 805; section 834.
    Kernohan, had he discovered the fraud, could have filed a bill in equity to enforce the transfer by indorsement. 1 Chitty on Bill, 10th ed., 167; Smith v. Armstrong, Peak’s N. P. C., 50; Arden v. Watkins, 3 East., 317; Ex parte Greening, 13 Vesey, 206; Ex parte Mowbray, 1 Jac. & Walker, 428; Ex parte Hall, 1 Rose, 14. And such indorsement, when made, would have related back to and taken effect as of the time when the actual transfer took place. Smith v. Armstrong, Peak’s N. P. C., 50; Anonymous, 1 Campb., 492.
    And the courts have even gone further and held, that not only by subsequent indorsement does the indorsee take as of the time when the original transfer took place, but he takes free from equities attaching either prior or subsequent to such transfer. Watkins v. Maule, 2 Jac. & Walker, 237; Baggerly v. Gaither, 2 Jones (N. C.) Eq., 80; Buckley v. Chapman, 9 Conn., 5; Phillips v. Bank of Lewiston, 18 Pa. St., 403; Selfridge v. Northhampton Bank, 8 W. & S., 320; Burrows v. Keays, 37 Mich., 431.
    The written assignment of February 8, 1879, transferred to Kernolian the legal title to the land described m the mortgage. It is a mistake to speak of a mortgage in Ohio as being a mere incident of the debt, or as a mere lien, or security, or collateral contract. In Ohio, • a mortgage, at all events as between the parties thereto and those claiming under them, is a conveyance of land. Raquet v. Roll, 7 Ohio, part 2, 73. It is also well settled in Ohio, that after condition broken, the legal estate, in mortgaged premises, becomes absolute in the mortgagee, as between him and the mortgagor, and those claiming under him. Bands and Wife v. Kendall, 16 Ohio, 671; Heighway v. Pendleton, 15 Ohio, 736; Fishers v. Kramers' Lessee, 16 Ohio, 124; Nolan v. Ermston, 18 Ohio, 277; Childs v. Childs, et al., 10 Ohio St., 344; Allen v. Averly, 24 Ohio St., 97. This is well illustrated by the fact that the mortgagee can, after condition broken, maintain ejectment, to which certain defenses, e. g., illegality of consideration, cannot be set up. Ely's Lessee v. Maguire, 2 Ohio, 233; Raquet v. Roll, 7 Ohio, part 2, 73; Williams v. Englebrecht, 37 Ohio St., 386. Story’s Equity Pleading’ (10thed.), sections 188, 189, 1892; Hilton v. Lathrop, 46 Me., 297; Hill v. Adams, 2 Atkins, 39; Chambers v. Goldwin, 9 Vesey, Jr., 268; Lennon v. Porter et al., 2 Gray, 473; Wetherell v. Collins, 3 Mad., 255; Drew v. Harmun, 5 Price, 319. The same rule applies in a strict foreclosure, which is nothing more or less than a cutting off of the equity of redemption. Story’s Equity Pleading’ (10th ed.), section 201. Moreover, in every action of foreclosure the owner of the equity of redemption is entitled to come in and pay the debt, and upon his so doing, the court will decree a reconveyance of the legal title. Story’s Equity Pleading (10thed.), Sections 74a, 200; Wood v. Williams, Mad., 186; Scott v. Nicoll, 3 Russ., 476; Hickens v. Kelley, 2 Small and Gif., 264; Clerkson v. Bowyer, 2 Vernon, 67; Allens. Everly, 24 Ohio St., 97; Denby v. Mellgrew, 58 Ala., 148. In cases where a sale is ordered the same rule and reason applies as in strict foreclosures. Prout v. Hoge, 57 Ala., 28; Bibb v. Hawley, 59 Ala., 403.
    All the rights and remedies of the owner of the legal title are vested in the executor instead of the heir. McGuffey v. Finley, 20 Ohio, 474; Grant & Ludlow’s Adm., 8 Ohio St., 1 Swartz v. Leist, 13 Ohio St., 425; Westerman v. Westerman, 25 Ohio St. 500; John v. Bridgman, 27 Ohio St., 22; Smith & Benedict’s R. S., Sec. 907b; Templeton v. Horn, 82 Ill., 491; Watson v. Railroad Co., 47 N. Y., 157; Kernohan paid value, had no notice, is not estopped, was honest and was guilty of no laches. Holliger v. Bates, 43 Ohio St., 437; Walker v. Bement, 42 Ill., 281. Nor is there any room for any estoppel against Kernohan, for by no act of his was the apparent ownership of the note conferred upon McGill. So the case of Chandler v. Coomoes, 33 Ohio St., 178 does not apply, and that decision is carefully limited, if not practically overruled, by Osborne v. McClelland, 43 Ohio St., 306.
    It cannot be claimed Manss Brothers have any interest at all in the mortgage debt, as distinguished from the note. Davis v. Austin, 1 Vesey, Jr., 247; Kernohan v. Durham, 48 Ohio St., 1.
    Nor can it be claimed Manss Bros, got any legal title to the mortgage security, or what is the same thing, the land covered by the mortgage. Their only possible claim to any ■ interest therein, is • by virtue of a supposed equity, that the mortgage follows the note. Swartz v. Leist, 13 Ohio St., 419.

      • But our adversaries claim, whatever Kernohan’s title to the land may be, they are the bona fide holders, for value, before maturity, of the note, which proposition at this time we admit for the sake of the argument, and as the mortgage follows the note, they are consequent^ the bona fide holders, for value, before maturity, of the mortage security ; and as a necessary result from the above, they are entitled to the same rights in the security, that the}^ would have in an action on the note. Bailey v. Smith, 14 Ohio St., 396 ; Ranney v. Hardy, 43 Ohio St., 157; Osborne v. McClelland, 43 Ohio St., 284; Heller v. Meis, 1 C. S. C. R. 477; Timberman v. Hawley, 2 C. C. Rep., 27; Johnson v. Carpenter, 7,, Minn., 176; Hostetter v. Alexander, 22 Minn., 559 , Scott v. Austen, 36 Minn., 460; Oster v. Hickley, 35 Minn., 245; Schmidts. Frey 8 Robinson (La.); 435; Bouligny v. Fortier, 17 La. Ann., 121 ; Morris v. White, 28 La. Ann., 855; Butler v. Stockton, 33 La. Ann., 170,; Grassley v. Reinbeck, 4 Ill. App., 341; Walker v. Dement, 42 Ill., 272; Kleeman v. Frisbie, 63 Ill., 482; White v. Southerland, 64 Ill., 181; Haskell v. Brown, 65 Ill., 29; Bryant v. Vix, 83 Ill., 11; Towner v. McClelland, 110 Ill., 542; Scott v. Magloughlin, 133 Ill., 30 ; Temple v. Whittier, 5 Western Rep. (Ill.), 144 ; Taber v. Foy, 56 Iowa, 539; First Rational Bank v. Bryan, 62 Iowa, 42.
    The general rule as to assignments of dioses in action undoubtedly is, that the assignee, though without notice of the defect, takes subject to all equities existing against the assignor. There can be however, equities (1) in favor of the original debtor, or (2) in favor of some prior assignor, or (3) in favor of third parties. The last two are what are known or described as latent equities, and arise in this case. Pomeroy Equity Jurisprudence, section 703 ; Bush v. Lathrop, 22 N. Y., 535; Walker v. Dement, 42 Ill., 277; Anderson v. Sharp, 44 Ohio St., 260; Greene v. Merrick, 64 N. Y., 220; Allen v. Smitherman, 6 Iredell Eq., 341; Davis v. Bechstein, 69 N. Y., 440 ; Towner v. McClelland, 110 Ill., 542; Osborne v. McClelland, 43 Ohio St., 284; Morris v. White, 28 La. An., 855; Pitton v. Martin, 1 Sandf. Ch., 569; Sherwood v. Meadow Valley Mfg. Co., 50 Cal., 412; Barstow v. Savage Mfg. Co., 64 Cal., 388; Barry v. Equitable L. A. Soc., 59 N. Y., 587; Chandler v. Coombs, 33 Ohio St., 178; Taylor v. Bates, 5 Cowen, 376; Lindsay v. Wilson, 2 Dev. & B., 85; Fairbanks v. Sargent, 5 Cent. Rep., 919; Bradley v. Root, 5 Paige, 632; Coon et al. v. Reed, 79 Pa., St., 240; Allen v. Watt, 79 Ill., 284; Muir v. Schenck, 3 Hill, 228; Shropshire Union Ry. v. The Queen, L. R., 7 Eng., and Irish App. Cases, 496; Reid v. Sprague, 72 N. Y., 457; Downer v. Bank, 39 Vt., 25; Schaffer v. Reilly, 50 N. Y., 61; Ranney v. Hardy, 43 Ohio St., 157; Trustees Union College v. Wheeler, 61 N. Y., 88; Crane v. Turner, 67 N. Y., 437; Seymour v. Kinney, 106 N. Y., 230; Brooks v. Record, 47 Ill., 30; Grassly v. Reinbeck, 4 Ill. App. 341; Mangles v. Dixon, 3 H. L. C., 702; Maybin v. Kirby, 4 Rich Eq., 105.
    Manss Bros, are not bona fide holders without notice of the note itself. Strong v. Jackson, 123 Mass., 60; Taylor v. Page, 6 Allen, 86; Crane v. March, 4 Pick., 131; Abele v. McGuigan, 78 Mich., 415.

      William E. Jones and J. J. Glidden, for defendants in error.
    It may safely be asserted that no case can be found which does not sustain the title of a bonafide indorsee for value, before maturity, without notice of any equities. The note made by Martin to McGill, for the payment of $7,602.72, was received by Manss from McGill, the payee, by his indorsement thereon, before maturity, for a good consideration, without notice of any equities against it. Section3171, Revised Statutes, provides that all notes payable to any person or order shall be negotiable by indorsement thereon, so as to ab-. solutety transfer and vest the property thereof in each and every indorsee or holder successively. This principle has been recognized as the law at least as far back as Swift v. Tyson, 16 Peters, 1, wherein the court assumed this proposition to be too clear to require argument or authority to support it. Since that decision, two other cases have been ably and fully considered by the Supreme Court of the United States, in the cases of Goodman v. Simons, 20 How., 343, and Murray v. Lardner, 2 Wall., 110. Johnson v. Way, 27 Ohio St., 380; 1 Parsons on Notes, 258; Comstock v. Hannah, 76 Ill., 531; Goodman v. Harvey, 4 Ald. and Ell., 870; Murray v. Lyburn, 2 Johns., Ch.443; Mott v. Clarke, 9 Pa. St., 399.
    If Manss had only received the note, without any indorsement, thus having the equitable title to. it, before he learned of the transaction between McGill and Kernohan, and afterwards learning of it, he, Manss, might even then by taking an indorsement of the note, have acquired the legal title, in aid of his equity, and the two rights so united, would have prevailed in a court of equity. Adams’ Equity, 161; Gibler v. Trimble, 14 Ohio, 323; Watkins v. Maule, 2 Jac. and Walker, 237; Murray v. Lyburn, 2 Johns., Ch.443; Mott v. Clark, 9 Pa. St. 399; Silverman v. Bullock, 98 Ill., 11; Stewart v. Smith, 17 Ohio St., 82.

      The fact that Martin is dead, and that his estate is insolvent, cannot affect the rights of, Manss • in the note. Were Martin living, a personal judgment could be taken against him, by Manss, on the note and his property would have to respond to it. A note payable to order when properly indorsed and delivered, for value before due, is, in the hands of a bona ficle holder, free from all equities between the original parties. Revised Statutes, section 3171.
    ■ Even though McGill in fact had delivered to Kernohan the genuine note by indorsement thereon, then had stolen it from him, and still before maturity, for value delivered the note, without notice of fraud, defect of title, or other fact impeaching it, in his hands to Manss, still Manss would own the note and would be entitled to recover in it. Daniels on Notes, 677, and also on page 2; 2 Parsons -on Notes, 265, 268; Welch v. Goodwin, 123 Mass., 71; City Bank v. Perkins, 29 N. Y., 554; Phelan v. Moss, 67 Pa. (17 P. F. Smith), 59.
    It seems necessary under the terms of the conditions of this mortgage, to discuss the question whether the note represents the debt or the mortgage represents it. This mortgag’e was given to secure the payment of the note, not the note to secure the mortgage. When the note is paid the mortgage should be cancelled, and the mortgagor may require that it be done. Daniels v. Densmore, 32 Neb., 40; Kling v. Ballentine, 40 Ohio St., 395; Cleveland v. Cohrs, 10 S. C., 224; Miles v. Gray, 4 B. Mon., 517; Wright v. Eaves, 10 Rich. Eq., 582.
    A mortgage note if negotiable in form is of course assignable, and the assignee takes the legal title to it. When, therefore, the debt is in the form of a negotiable note, a legal transfer of this, carries with it the mortgage security; and inasmuch as a negotiable promissory note by the commercial law, when assigned for value before maturity passes to the assignee free from all equitable defenses to which it was subject in the hands of the payee, it does not lose this character which it has under the commercial law, when it is secured by mortgage. Jones on Mortgages, 834; Allen v. First Nat. Bank, 23 Ohio St., 104; Alsdorf v. Reed, 45 Ohio St., 653; Holmes v. Gardner, 29 W. L. B., 214; 2 Story’s Eq. Jur., section 1016; Ranney v. Hardy, 43 Ohio St., 16; Merrick v. Bartholick, 47 Barb., 253; Briggs v. Hunnerwold, 35 Mich., 479; Guver v. Hord, 20 Ind., 395; Carpenter v. Longan, 16 Wall., 271; Jacksons. Willard, 4 John., Ch. 43; Jordans. Cheney, 74 Me., 359; Pomeroy’s Eq. Jur., 1210; Jones on Mortgages, 818; Ober v. Gallagher, 93 U. S. (3 Otto), 199; Jackson v. Blodgett, 5 Cowen, 206; Morris v. Bacon, 123 Mass., 60; Banger v. Bancroft, 12 Gray, 365; Miller v. Larned, 103 Ill., 562; Himrod v. Gillman et al., 35 N. E. Rep., 373; 44 Ill. App., 516.
   Spear, J.

The question presented by the record, is whether, both parties, acting in good faith, one who obtains title to a mortgage given to secure several notes to several persons, by assignment for value bjr one of the mortgagees with delivery of the same and a forged copy of one of several notes secured thereb}7, indorsed by the paj^ee who was then the owner of the genuine note, obtains a lien for money thus advanced on the faith of the security, in preference to the bona, fide indorsee for value of the genuine note obtained afterwards, both transactions occurring before the maturity of the note ?

It seems to us that the question will be solved by die application of simple and well established principles. The concession that each party acted hi e2itire good faith remor es' any necessity for considering equities, a2id leaves the case to be determhied on purely legal grounds.

The following propositions we consider are settled in Ohio:

1. Where a promissory 2iote is secured by mortgage, the note, not themortgage, represents the debt. The 2iiortgage is, therefore, a mere incident, and an assignme2it of such incident will not, in law, carry with it a transfer of the debt; on the other hand a transfer of the note by the owner so as to vest legal title in the indorsee will carry with it equitable ownership of tlie mortgage. And so, if the debt be evidenced by several promissory 2iotes, the legal transfer of a portion of the notes carries with it such proportional hiterest in the security as the notes transferred bear to the whole. Harkrader v. Leiby, 4 Ohio St., 602; Ex'rs of Swartz v. Zeist, 13 Ohio St., 419; Fithian v. Corwin, 17 Ohio St., 118; Allen v. Bank, 23 Ohio St., 97; Holmes v. Gardner, 50 Ohio St., 167.

2. Being but an incident of the debt, the mortgage remains, until foreclosure or possession taken, in the nature of a chose in action. Where given to secure notes it has no determinate value apart from the notes, and, as distinct from them, is 2iot a fit subject of assignment. A2id where the notes are legally tra2isferred, the mortg-agee, and all claiming under him, will hold the mortgaged property in trust for the holder of the notes. Jordon v. Cheney, 74 Me., 359; Jones on Mortgages, 818; Pomeroy’s Eq. Jur., section 1210.

3. All 2iotes payable to any person or order are negotiable by indorsement thereon, so as absolutely to transfer and vest the property thereof in each and every indorsee or holder successively. Such indorsee,or holder, may, in his own name, institute and maintain an action thereon against the maker. Sections 3171 and 3172, Revised Statutes.

4. A holder of negotiable paper who takes it before maturity for a valuable consideration, in the usual course of trade, without knowledge of facts which impeach its validity, holds it by a good title. To defeat a recovery it is not sufficient to show that he took it under circumstances which ought to excite suspicion in the mind of a prudent man. To have that effect, it must be shown that he took the paper under circumstances showing- bad faith or want of honesty on his'part. Nor does the note lose its commercial character when secured by mortgage. Johnson v. Way, 27 Ohio St., 374; Kitchen v. Loudenback, 48 Ohio St., 177.

Applying these rules to the facts, the following conclusions seem to result, viz. :

Kernohan, by the assignment of the mortgage, took the legal title to it so far as the same was owned by McGill, and an equitable right in the $7,602.72 note. He did not take, nor did McGill intend to transfer to him, any legal title to the note, for McGill kept, and intended to keep that in his own possession, unindorsed, and subject to his continued control. Such rights as Kernohan took he .might assert as against McGill, but John and Louis Manss alone can recover on the note. They, by their purchase and the indorsement to them by McGill, took a full title to it as against the world, together with the equitable title to the mortgage in whosesoever hands it might be. The one has the legal title to the incident, with an equitable right in the debt; the other the legal title to the debt, tog-ether with an equitable title to. the incident. As both cannot have precedence the weaker must give way to the stronger. The leg-al title to the incident must be subordinated to that which is superior, viz.: the legal title to the debt, although the holder of the incident acquired his right first. John and Louis Manss were, therefore, entitled to the proceeds of the mortgaged lands.

The case of Kernohan v. Durham, 48 Ohio St., 1, is relied upon by plaintiff in error. We think it does not support his contention. In that case Coddington took by indorsement the genuine note after due. Kernohan took an assignment of the mortgage which assignment also purported to transfer the note. This was not only before the transfer of the note to Coddington, but before the note was due. The holding is, that, as between Kernohan and McGill (the payee), the former took an equitable title to the genuine note, and hence, as Coddington’s title was acquired after the note had been dishonored, he coitld take no better right than his indorser had. The note being past due he was put upon inquiry, and was chargeable with whatever knowledge due inquiry would have elicited. The vital difference between the position of the holder of the note in that case and in this is, that, while Coddington took his title after clue and hence was charged with all infirmities, John and Louis Manss being- indorsees and purchasers for value in the ordinary course of trade, before due, took g-ood title as against the world.

Judgments afirmed.