author: White, J.

text:
    Cleveland and Mahoning Railroad Co. v. Robbins et al., Adm’rs of Elias Fassett.
    On the 9th of September, 1854, the Cleveland and Mahoning Railroad Company issued to V. certificates of its capital stock. The certificates declared upon their face that the stock was transferable on the books of the company upon the surrender of the certificates. On the 16th of September, 1854, the stock was sold to 3?. by V., who delivered to him the certificates with blank powers of attorney to enable him to have the stock transferred. The certificates were mislaid by 3? , and were not discovered until December, 1871. In the meantime, on May 8, 1863, the board of directors of the railroad company, on the application of V., issued to B. & P., to whom Y. assumed to sell the stock, new certificates of stock, on the supposition that the original certificates had been lost by Y. On the application of the administrators of 3?. for a transfer of the stock to their names, and for an account of the dividends, the company refused the application, on the ground of the issue of the new certificates to B. & P. The by-laws provided that no new certificates should be issued in place of any certificate previously issued, until such previous certificate was surrendered and canceled. There was also provision in the by-laws, that certificates might bo issued on the special order of the board of directors, in the place of certificates lost or destroyed, on proof of such loss and destruction, and on receiving security to indemnify the company against loss consequent upon the issuing of such new certificates. Held:

    1. The issuing of the new certificates to B. & P., and the allowing the transfer of the stock to them, was a breach of the duty which the company owed to B., as the holder of the original certificates, and this breach of duty created a liability on the company to replace the stock to which B. was entitled, or to account for its value.
    2. The issuing of the certificates under the by-law providing for the issue of certificates in place of such as may have been lost or destroyed, does not affect the liability of the company to B., as the holder of the original certificates. The object of the by-law is to enable persons whose certificates appear to have been lost or destroyed, to obtain others, on indemnifying tbe company against loss, in case other parties should assert rights against the company under the original certificates; but does not affect the rights of such parties.
    3. The company is not liable for the dividends paid on the stock, before if had notice of the transfer of the certificates to B. Unlike the transfer of the stock, the surrender or production of the certificates was not necessary to draw the dividends. Until the company was notified of the transfer of the certificates, it was warranted in paying the dividends to V., the registered owner, or to his order. And by paying the dividends to B. & P., as purchasers under V., the company is as fully protected as if the payments had been made to Y. directly.

      4. Until the transfer of the stock to the holders of the original certificate was refused, or they had notice of the transfer of the stock to other parties, the statute of limitations did not begin to run.
    Error to the District Court of Cuyahoga county.
    The original action was brought by defendants’ in error against the plaintiffs in error, in the Court of Common Pleas of Cuyahoga county.
    They set out in their petition, substantially, that on the 9th day of September, 1854, the Cleveland and Mahoning Railroad Company issued to Voce, Perkins & Co., of New York, two certificates for twenty shares each, of fifty dollars value per share, of the capital stock of the said railroad company. The certificates were numbered 340 and 341, and were in the ordinary form, transferable by their terms and by the by-laws of the company, on the books of the company, upon the surrender of the certificates.
    That on the 16th day of September, 1854, said Yoce, Perkins & Co., for value, sold said stock, and delivered said two certificates for said stock to Elias Eassett, the plaintiffs’ •intestate, and on the 22d day of November, Yoce, Perkins & Co. executed a power of attorney on the back of each of the said certificates, authorizing the transfer of said shares to the said Eassett.
    That no transfer of the shares was ever made by the said company to the said Eassett in his lifetime, and that lie continued to hold said certificates until his decease, which occurred May 29, 1863, up to which time no dividends were declared on the stock.
    That Elias Eassett, in his lifetime, mislaid said certificates among certain old papers of the said Eassett, and upon his decease said certificates came with all his papers into the possession of the plaintiffs, as his administrators, and they have ever since held the same, though the same were not discovered by the plaintiffs tobe among said papers, nor found by them, until on or about the 1st day of December, 1871; immediately after which said company and said Burke and Perkins were notified of such finding.
    That the said railroad company, having full notice from its stock and transfer books that the said certificates so issued to the said Yoce, Perkins & Co. were still outstanding and had never been surrendered, and also that the said Elias Eassett had become the holder and owner of the said stock on the 8th day of May, 1863, at the request of the said Yoce, Perkins & Co., the said O. M. Burke and Joseph Perkins, without full or any other proof than the representations of the said Yoce, Perkins & Co. of the pretended loss of the said certificates, said Yoce, Perkins & Co., then claiming to own the same and the stock represented thereby, and representing that they had lost the same, procured said company to issue and deliver to the defendant, O. M. Burke, for himself and said Josejjh Perkins, two other certificates, numbers 1759 and 1760, for the same number of shares of the said stock, to be by him held in place of the said cei’tificates, numbers 340 and 341, so claimed by the said Yoce, Perkins & Co. to have been lost.
    That the said Burke, prior to, and at the time of the issumg of the said certificates to him as aforesaid, was the acting secretary of the said railroad company, and that said Perkins was vice-president and one of the directors thereof. That the said O. M. Burke had previous to such issue to him for his own and the benefit of said Joseph Perkins, bought of said Yoee, Perkins & Co. their pretended title to said shares of stock, with notice of the rights of the said Elias Eassett, at the rate of fifty cents on the dollar of the par value thereof, and the said Burke and Perkins claimed to be the legal holders of the said forty shares of stock in virtue of the said purchase until April 18, 1872. That at and before the time of such purchase of said pretended title, said Burke and Perkins, and said railroad company had full notice and knowledge of the fact that said certificates, numbers 340 and 341, were still outstanding, and of all the facts in relation thereto, therein stated, and that, therefore, and by reason of their relations to the said railroad company, such attempted purchase of said pretended title by them of the said stock was fraudulent, and invested them with no bona fide right or title thereto, as against the plaintiffs. That the said Burke and Perkins remained officers of the said company long after the said attempted purchase, and the said Perkins so. remained until April 18, 1872. That the said O. M. Burke and Joseph Perkins, on the said 8th day of May, 1863, delivered to the said railroad company a bond of indemnity, signed by the said Voce, Perkins & Co., by J. V. Voce in liquidation, in the penalty of $2,347.33, conditioned that if the said Voce, Perkins &. Co. should at all times indemnify and save harmless the said railroad company against'any loss, damage, or dividends arising out of the loss of said original certificates, numbers 340 and 341, and the issuing of the new ones in the stead thereof, and the return to the said railroad company the-said forty shares of the stock so issued, in case the lost certificates should thereafter be found by the said Voce, Perkius & Co., or be in the hands of any innocent holder claiming title thereto, or, if unable to return the said certificates issued to them, or other stock of said company for like amount, should pay to the said company the full, not exceeding the par value thereof, then said bond to be void, otherwise in full force.
    That on the 8th day of May, 1863, the defendants, O. M. Burke and Joseph Perkins, executed and delivered to the railroad company their written guarantee, therein reciting that the Cleveland and Mahoning Railroad Company had on that day, at their request, and upon the delivery therewith of the bond mentioned, issued stock certificates, numbers 1759 and 1760, for forty shares to O. M. Burke, they thereby bound themselves, their heirs, executors, and administrators to the said Cleveland and Mahoning Railroad Company in the sum of $4,000, that the said Yoce, Perkins & Co. should well and truly fulfill all the terms and conditions of their said bond of indemnity ; and the said Burke and Perkins would pay any and all additional loss or damage that the said company might sustain by reason of the return or delivery of said stock certificates, numbers 340 and 341, over and above what said Yoce, Perkins & Co. had stipulated for.
    That the said railroad company, by their order entered upon the records, approved the said bond and guarantee, and authorized their said vice-president and secretary to issue new certificates for the said stock, which order is dated on the said 8th day of May, 1863, and in pursuance of which order said certificates were so issued to the said Burke for the joint benefit of himself and said Perkins.
    That the said Burke and Perkins purchased said stock with a view to an anticipated advance of the value of the same, and in view of large dividends upon said stock, which had-been earned and were about to be made, and which they then knew would, and which afterward did occur. That the said Burke and Perkins, as holders of the said certificates for the said shares, have from time to time since the purchase thereof, received from the said railroad company sundry dividends on said shares of stock, both in money and in additional shares to them, to wit, October 26, 1863, a dividend paid in stock, thirty-four and one-half per cent, upon the said stock, amounting in stock at par to $690.
    On March 7, 1864, a dividend paid in stock, of ten per cent, amounting at par to $200.
    It appears from the petition that the railroad company paid to the said Burke and Perkins upon the capital stock so increased by the said stock dividends, cash dividends, at suudry times, between November 10,1863, and November 10, 1871, amounting in the aggregate to $1,841.60.
    The petition further alleges, in substance, that the said Burke and Perkins held said certificates and received all of said dividends as such holders, and continued to hold said certificates until April 18, 1872, when they sold the same at and for the price or sum of $3,556.12, which they then received therefor; and thereupon the said railroad compauy, at the request of the said Burke and Perldus, transferred said stock to such purchasers, all of which was done by said railroad company and Burke and Perkins, with full knowledge of all the facts hereinbefore stated; that the said Burke and Perkins have never paid the plaintiffs any part of the moneys so had and received by them, nor in any manner accounted to the plaintiffs therefor; that, on the 3d of April, 1872, the plaintiff’, Francis Dunlevy, as one of the administrators of Elias Fassett, presented said certificates 340 and 341 to the secretary of said railroad company, at his office in Cleveland, and demanded payment of all dividends that had been declared and were then due on the said stock, and also demanded a transfer of the said stock on the books of said compauy to the names of the administrators of the estate of the said Elias Fassett, deceased, which demand the secretary declined to comply with, and the railroad company still refuses to make such a transfer.
    The plaintiff’s allege that they bring said certificates 340 and 341, and tender the same in court, and ask that by a proper action of the court, the railroad company be required to issue to the plaintiffs new certificates of stock in lieu of those which they hold, with interest thereon, and they ask that in the event that it shall be determined that said company has become incapacitated to so issue certificates for stock or are not liable to so issue the same, that then said company be required to pay the plaintiffs the value of said stock and dividends and interest; and'in case this court shall find that the said company is not, by reason of its said transactions with the said Burke and Perkins, or otherwise, liable to either issue said stock to the plaintiffs or account therefor, and for the dividends and interest thereon, then and in that case plaintiffs say: That the said Burke and Perkins become and are by reason of the facts set forth in this petition liable to account to the plaintiffs for the said stock, for the said dividends by them received thereon, with interest upon each from the date of its receipt, and for the amount received by them for the said stock up to the said sale thereof by them, with interest thereon, specifying over again the amount for which they claim the stock was sold and the amount of dividends received by the said Burke and Perkins, and they ask that judgment be given for the plaintiffs against said defendants, and execution awarded for the said sum, with interest, and for such further relief as to the court shall seem just.
    To this petition the railroad company and Burke and Perkins filed separate answers. The railroad company, in its answer, admits that it issued to Voce, Perkins & Co. the certificates of stock mentioned in the petition, and that said stock was transferable only upon the books of the company. It denies any knowledge of a sale of stock by Voce, Perkins & Co. to Eassett, and denies that such sale was made. It admits that no transfer was ever made to Eassett upon its books. It denies all knowledge that the said Eassett was ever the owner of or that he lost or mislaid said certificates of stock. It denies also that these certificates of stock came-into the hands of the plaintiffs as the administrators of Eassett. It alleges that the stock stood in the name of Voce, Perkins & Co., upon its books, from the date of said certificates of stock up to the 8th day of May, 1863, when it alleges that the said stock was duly and legally transferred upon its books to tbe defendants, Burke and Perkins; that at the time of the transfer to Burke and Perkins it had no knowledge or information upon the subject of the ownership of the said stock, except so far as it appeared upon its books, and so far as it was represented by Yoce, Perkins & Co. to be their stock; and the company denies that it had any knowledge whatever that the said stock, or any part thereof, belonged to Elias Fassett or to any other person .than Yoce, Perkins & Co.
    It further states that the said Yoce, Perkins & Co., at the time of the transfer to Burke and Perkins, claimed to be the owners, and claimed to have lost the certificates which had been issued to them, and which are mentioned in the petition ; that the railroad company, fully believing that the said stock was the property of Yoce, Perkins & Co., and Yoce, Perkins & Co. having presented to it satisfactory proof of the loss of the said certificates, it thereupon duly permitted said stock to be transferred upon its books from Yoce, Perkins & Co. to the said Burke and- Perkins; that such transfer was allowed and made by the railroad company in the utmost good faith, without any design to hinder, oppress, embarrass, or injure said Fassett or any one else. It admits the execution to it of the bond of indemnity at the time of the making of such transfer. It admits the demand by the plaintiff, Dunlevy, for the transfer of said stock to the plaintiffs upon its books, and admits that it refused to permit such transfer, and says that it refused to make such transfer for the reason that the said stock had been previously and legally transferred to the said Burke and Perkins. It admits that Burke was the secretary of the company at the time he purchased the stock, and that Perkins was at that time one of its directors. It admits that the dividends alleged in the petition to have been made upon said stock have been made as alleged, and it charges that it has paid regularly to the persons in -whose name said stock stood upon its books all the dividends made.
    It is unable to state at what time said Burke and Perkins sold said stock, or any part thereof, but it denies that they sold said stock at the time or times alleged in the petition. And it alleges that the said Burke sold the half of said stock held by him within a few months after he purchased the same.
    The defendant denies that it is bound to transfer any stock whatever claimed by the plaintiffs, upon its books, and denies that it has the-powerto issue to them any stock whatever upon account of the certificates held by them, and denies all the other allegations in the petition contained.
    The railroad company also pleads that the plaintiffs ought not to maintain their action because that it did not accrue to them or to their intestate at any time within four years ; and further, in a separate defense, pleads that the action ought not to be maintained, because it did not accrue to the plaintiff or said Eassett at any time within six years next before the commencement of the action.
    The answer of Burke and Perkins is joint, and is substantially the same as the answer of the railroad company. They admit the purchase of the stock, the receipt of the dividends up to the time that they sold out. They set out in the answer that Burke sold out in 1866 and Perkins in 1872. They say that they purchased the stock in the utmost good faith in the full belief that Voce, Perkins & Co. were- the owners thereof, and without any knowledge or conception that it belonged to any other person. They deny ' all allegations of fraud or notice of wrong charged in the petition. They claim to have purchased the stock in the utmost good faith and to be the owners thereof.
    The plaintiff, by reply, denied the new matter contained in these answers.
    Upon the trial, the plaintiff offered in evidence the following by-law of the Cleveland and Mahoning Railroad Company, to wit:
    “No certificate of new stock shall be issued, unless in obedience to the orders of the board of directors, or on subscriptions made and accepted by their authority and on full payment therefor being made.
    “No new certificates shall be issued in place of any certificates previously issued until such previous certificate shall have been surrendered and canceled, and such cancellation, with the date thereof, plainly written on the face of the certificate so surrendered.
    “A certificate or certificates may be issued on the special order of the board in place of certificates lost or destroyed, on full proof being made of such loss or destruction, and on receiving adequate security to indemnify the company against all loss consequent upon the issue of such new certificate or certificates.”
    The plaintiffs also offered in evidence the following resolutions, which were unanimously adopted at a meeting of the board of directors of said railroad company, held April 9,1863, to wit:
    “Resolved, That the large surplus of earnings of this company’ over and above its current expenses, interest and taxes fully entitle the stockholders to some income from their investments, and that the present situation and prospects of the company justify an early dividend upon the capital stock.

      “jResoloed, That it is the true policy of this company to commence paying dividends as early as July next, and that measures be taken to provide therefor.”
    At a meeting of the board of directors of the company, the bond of Vose, Perkins & Co., for c'ertificates of stock said to have been lost, was approved, and the vice president and secretary authorized to issue new certificates.
    Such further facts as are necessary to an understanding of the ease will be found in the opinion.
    On appeal in the district court the following decree was rendered:
    “ This cause came on to be heard upon the petition of the plaintiffs, the separate answer of the Cleveland and Mahoning Railroad Company, the joint answers of Oscar M. Burke and Joseph Perkins, the replication thereto, the exhibits and testimony, and was argued by counsel. On consideration whereof the court do find the facts stated in the petition to be true; that said railroad company and said Burke and Perkins had notice in equity when said new certificates of stock Nos. 1759 and 1760 were issued to said Burke and Perkins, in place of certificates Nos. 340 and 341 previously issued to Yoce, Perkins & Go., and by said Yoce, Perkins & Co. sold aud delivered to Elias Bassett; that said last mentioned certificates were owned by some other party than said Yoce, Perkins & Co., and that the issue of said new certificates in place of said certificates previously issued, was a violation of the by-laws of said railroad company, aud of the assurances of the railroad company embodied in said certificates, as well as in said bylaws, that no new certificate should be issued in place of any certificates previously issued, until such previous certificate should have been surrendered and canceled; that said issue of certificates No. 1759 aud 1760, in place of said certificates Nos. 340 and 341, was a violation of corporate duty on the part of said railroad company and in law fraudulent, and conveyed no title in equity in said stock represented by said new certificates to said Burke and Perkins.

      “ And the court do further find, that prior to the commencement of this suit said Burke and Perkins conveyed all of said stock so wrongfully issued to bona fide purchasers without any notice of any outstanding equity in the plaintiffs as administrators of Elias Eassett, deceased ; that plaintiffs made demand for the transfer of said stock and for the dividends which had accrued thereon, of said company, on the 3d day of April, 1872; that the railroad company refused to transfer said stock and to pay said dividends; that the law and equity of the ease are wdth the plaintiffs, and that they are entitled to have and receive from the defendants the value of said stock on said 3d day of April, 1872, so wrongfully conveyed away from them, with the increase and dividends thereof, with interest on said cash dividends from the time the same were payable, and with interest on the value of said stock from the time of the demand thereof until the first day of this term.
    “ The court do also further find that said original issue of stock had been increased by said stock dividends from $2,000 to $2,890; .that the value of said stock so increased as aforesaid to $2,890, was on said 3d day of April, 1872, $3,368 ; that the interest on said sum of $3,368, to the first day of this term, is $808.32; and that the amount of cash dividends declared and payable on said stock after the same was so wrongfully issued to said Burke and Perkins, up to the 3d day of April, 1872, and the interest thereon from the date of said cash dividends respectively, to the first day of this term, is $2,908.18. The court do therefore find that there is due from the defendant, the Cleveland and Mahoning Railroad Company, to the said plaintiffs, as administrators of said Elias Eassett, deceased, in the premises the sum of $7,084.50, with interest thereon from the first day of this term, and order, adjudge, and decree that the said defendant,-the Cleveland and Mahoning Railroad Company, within teu days from the rising of this court, pay to said plaintiffs said sum of $7,084.50, with interest thereon as aforesaid, and the costs of the suit to be taxed, and that in default of such payment, execution issue therefor.”
    A motion for a new trial was overruled. To which ruling and to the said judgment and decree the defendants excepted.
    The object of this proceeding is to obtain a reversal of the judgment and decree of the district court.

      S. Burke, for plaintiff in error :
    I. Eassett was not a stockholder; he had no right to dividends, or to vote, or to exercise any of the rights of stock - holders.
    Voce, Perkins & Co., so far as the railroad company knew or had the means of knowing, were the owners of the stock, and as to all the world, except Eassett, they were as clearly the owners after as before the sale to Eassett.
    We trust we are not misunderstood here. We make no claim that the sale and signature to the power of attorney was not good between the parties. As to them it doubtless was good and conveyed the entire title. In any contest between them the sale and transfer such as it was, would be conclusive. But we claim that as to the railroad company and innocent purchasers of the stock from the registered owner, and all other strangers to the sale and transfer, the, case is entirely different. 73 Penn. St. 59 ; Sherman v. Ins. Co., 29 Conn. 245 ; 13 Conn. 498; 12 Gray, 213; 11 Cush. 183 ; 17 N. J. 117 ; 34 Cal. 653 ; 20 Cal. 530 ; 49 Me. 315 ; 38 Barb. 535 ; 2 Wheat. 390; 2 Comst. 447; 34 N. Y. 30; 42 N. H. 424.
    We maintain that whoever purchases stock from the registered owner in good faith, without notice that it has been sold, or agreed to be sold to another, and who procures a transfer to be made to himself on the books, and thereby unites in himself both the equitable and legal title, will be protected, and will hold the stock as stock against the holder of the outstanding certificate.
    This doctrine is too well settled to be shaken.
    II. The action was barred by the statute of Limitations* Code, § 15.
    This is not such a case as comes within the saving clause of the statute, to wit, “ the cause of action shall not be deemed to have accrued until the discovery of the wrongdoer.” See 19 Ohio St. 462; 1 Superior Ct. Rep. 456; 1 Ohio St. 478.
    The injury was complete at the time of the transfer to them, and the statute of limitations began to run at the time of the transfer to them, upon the 8th day of May, 1863, and in four years from that time the plaintiffs’ cause of action, if any they ever had, was barred. They had slept upon their rights until, by the positive provisions of the statute, their rights, if any, were extinguished. 10 Ohio, 469 ; 5 B. & C. 149; 2 Munf. 444; 4 Ohio, 331; 6 Ohio St. 296 ; 14 Ohio, 443; 11 Ohio St. 201. See Batterly v. Faulkner, 3 B. & A. 288 ; Short v. McCartney, 3 B. & A. 626 ; Brown v. Howard, 4 Moore, 508.

      III. As to measure of damages:
    1. It is very clear that the railroad, company had no' notice at the time it paid any dividends of the transfer to Fassett; and not having any actual notice of such transfer, it seems too clear for debate that the company had the right to deal with Voce, Perkins & Co. as the holders and owners of the stock, and that in declaring and paying dividends the officers of the company were justified in treating them as the owners and paying the dividends over to them or to their order. Confessedly, no other person but Voce, Perkins & Co., or Burke and Perkius, as claiming under them, ever claimed any dividends from the railroad company until about the time that this action was instituted in the spring of 1872. The company commenced declaring dividends in 1868, and from that time, down to the commencement of this action, it continued to declare dividends, some in stock and some in cash. .During all that time, if the stock had not been transferred to Burke and Perkins, Voce, Perkins & Co. would clearly have been entitled to have di'awn these dividends ; they having caused the stock to be transferred to Burke and Perkins, and having thereby, so far as they w’ere concerned, authorized them to receive the dividends.
    It seems to us very clear that such transfer, such action upon their part, would, as to all the world, for the purpose of receiving dividends, put Burke and Perkins in their shoes, and put the railroad company in a position to deal with them as the representatives of Voce, Perkins & Co., in regard to dividends; and hence, there may be a very broad distinction in this case between the plaintiffs’- right to recover for the original stock, and to recover the dividends that have been paid by the company in good faith.
    In dealing with stockholders, a corporation has the right to be governed by its register. 36 Barb. 57; 42 N. H. 424; 29 Barb. 353; 45 Barb. 510 ; 13 Ill. 516.
    Interest should not have been allowed upon dividends.
    Whenever a dividend has been declared, it is the duty of the stockholder to apply for and collect his dividend, and the railroad company is never in default or in the wrong in regard to its payment until after demand and refusal. 2: Redf. on Rys. 531, and note 6; 6 Gill. 363; 28 Penn. St. 329; 49 Penn. St. 270; 98 Mass. 462; 34 Conn. 542, and cases cited in note on p. 139, Brice’s Ultra Vires ; 2 Redf. on Rys. 529, and note 2 ; 6 Ohio St. 489; 5 Dutcher, 82; 7 Ohio St. 299; 15 Ohio St. 413; 8 Pick. 90; 2 Minn. 323; 18 Mich. 60; 1 Bush (Ky.), 489 ; 52 Me. 578; 18 Md. 468.
    The rule of damages is the highest price of the property up to the time of trial. 26 N. Y. 309; 28 N. Y. 285; 34 N. Y. 88; 11 Wall. 369; 42 N. H. 424; 45 N. H. 545; 8 Cush. 168; 10 Pick, 415; 35 Me. 208; 48 Me. 180 ; 12 Ill. 99-184; 21 Ill. 118; 2 J. J. Marshall, 390; 13 Law, 225; 26 Conn. 389; 21 Mo. 279; 13 Mich. 9; 40 Miss. 360; 2 Nevada, 112; 7 Ohio St. 308.

      Otis, Adams & Russell, for defendants in error,
    in support of the judgment of the district court, cited: Kortright v. Buffalo Com. Bank, 20 Wend. 91; Pollock v. Bank, 3 Selden, 274; Railroad Co. v. Schuyler, 34 N. Y. 30; 4 Allen, 277; 46 N. Y. 325; 48 N. Y. 385; 30 Conn. 231; Campbell (Taney’s C. C. Decisions), 310; Bank v. Lanier, 11 Wall. 369; 14 Md. 299; 35 Md. 238.
    The question properly arises : What is the remedy for a breach of trust ? The usual and most effectual remedy for’ a breach of trust is a suit in equity, or, as we claim this action to be, and as the counsel of the defendants has by his-conduct hitherto admitted it to be, a petition in the nature’ of a suit in equity, and not simply an action at law for the recovery of damages sustained by such breach.
    Not only was the railroad company a trustee for Eassett of the title of its capital stock owned by him, but when the-same was transferred by the company to Burke and Perkins with knowledge that the previous certificates were still outstanding, Burke and Perkins also became trustees for Eassett of the title of the same stock.
    The district court, in finding that the issue of the new certificates in place of the ones previously issued was fraudnlent, in law, fixed the liability of all the defendants so far ■as it related to the plaintiffs, but as the railroad company was pecuniarily and legally liable to the plaintiffs, for the whole amount, while Burke and Perkins might be liable to the company only for the amount “ nominated in their bond,” the court voluntarily singled out the company, and made it responsible for the whole amount, in the first instance, very properly leaving the question of the liability «of the defendants among themselves undetermined until presented in a suit brought for that purpose.
    In case(of a breach of trust, a court of equity in the first place endeavors as far as possible to replace the parties in the same situation as they would have been in if no breach had been committed. Hence, where the trust property has been improperly disposed of, and is capable of being followed in specie, it will compel the trustee, or the party in possession (if the latter have taken with notice of the trust), to reconvey the estate.
    See the rule as laid down by Judge Story in Oliver v. Pratt, 3 How. (U. S.), 333.
    If the property can not be followed in specie, or if the holder can not be made liable because he is a bona fide purchaser, the trustee will be decreed to compensate the cestui ique trusts by payment of a sum equal to the value of the trust property. And in taking the account against the trustee, he will be invariably charged with the amount of principal and income, which would or might have been received from the trust estate, if no breach of trust had been committed. 1 Wood & Minot, 195.
    Every characteristic of the petition in the case at bar shows that it is a petition in equity, and not at law.
    As to the bar of the statute, see section 15 of the code.
    This is really and in form a proceeding in equity for relief oh the ground of fraud in law, and the lapse of time begins to run only from the discovery of the fraud. Longworth v. Hunt, 11 Ohio St. 194.
    Again, the directors of the railroad company, who permitted the new certificates to- be issued to Burke and Perkins, occupied, in regard to that stock, a fiduciary relation to Eassett. Jackson v. Ludwelling, 21 Wall. 616.
    Time does not begin to run against a cestui que trust till he has knowledge of the trust and a breach of it. Carlisle et al. v. Hunt, 10 Ohio St. 194.

      James R. Stanbery, also for defendants in error.
   White, J.

The original action was in the nature of a suit in equity, brought against the Cleveland and Mahoning Railroad Company, O. M. Burke, and Joseph Perkins. The object of the action was to obtain the transfer to the plaintiffs, upon the hooks of the railroad company, of forty shares of its stock,' the original certificates for which were held by Elias Eassett, the plaintiffs’ intestate, at the time of his death, and also to obtain from the company the payment of the dividends that had accrued on the stock. If the transfer of the stock could not be obtained, the plaintiffs prayed that the company be required to account for the value of the stock and the dividends; and in the event that it should be found that the plaintiffs were not entitled to such relief against the company, that the same be decreed to them against Burke and Perkins.

A separate answer was filed by the railroad company. Burke and Perkins answered jointly; but no decree was rendered, either in favor of or against them, nor are they parties to this proceeding in error. There was a finding against them in favor of the plaintiffs; but there was no judgment or decree on such finding.

Judgment was rendered against the railroad company .alone; and the present petition in error is prosecuted by the company against the plaintiffs below, Robbins and Dunlevy, administrators of Eassett.

The principal question arising in the ease, therefore, is, whether the railroad company is liable to the administrators of Eassett, the plaintiffs below, on account of the stock; and, if so, as to the nature and extent of such liability.

The duty of a corporation toward those interested in the-transfer of its shares of stock has been thus stated: “It is made the custodian of the shares, and is clothed with power to protect the rights of evei’y one from unauthorized transfers. The power thus vested in the corporation is a trust placed in its- hands for the protection of individual interests, and, like every other trustee, it is bound to-execute the trust with proper diligence and care, and is responsible for any injury sustained by its negligence or misconduct.” Lowry v. Commercial and Farmers' Bank of Baltimore, Campbell’s Rep. (Taney’s C. C. Decisions), 310.

In all such cases there may be no actual fault on the part of the corporation, yet the principle results from the justice and expediency, in such transactions, of casting the loss on those who can best provide against it. Chew et al. v. The Bank of Baltimore, 14 Md. 300.

In the present case, in addition to the statement contained upon the face of each of said certificates, that the stock mentioned therein is “ transferable upon the books of the company upon the surrender of this certificate,” a by-law of the company declared that “no new certificates shall be issued in place of any certificate previously issued, until such previous certificate shall have been surrendered and canceled, and such cancellation, with the date thereof, plainly written on the face of the certificate so surrendered.”

The original certificates in question were issued by the railroad company, on the 9th day of September, 1854, to Voce* Perkins & Co., who appeared on the books of the company as the owners of the stock. In the same year the stock was sold to Elias Fassett by Voce, Perkins & Co., who delivered to him the certificates, with blank powers of attorney, to enable him to have the stock transferred upon the books of the company. The certificates were mislaid by Fassett, and they were not discovered until December, 1871, after his death. In the meantime, on the 8th of May, 1863, the board of directors of the railroad company, on -the application of'Voce, Perkins & Co., issued to Burke or to Burke and Perkins, new certificates of stock, on the supposition that the original certificates had been lost by Voce, Perkins & Co. On the application of the administrators of Eassett, for the transfer of the stock to their names, •and for an account of the dividends that had been declared ■on the stock, the company refused to make the transfer, or to account for the dividends, on the ground of the issue of ■the new certificates.

The issue of these certificates and the transfer of the stock on which they were founded, was a breach of the •duty which the company owed to Eassett as the holder of the original certificates. This breach of duty on the part of the company resulted in Eassett’s losing the stock to which he was entitled, and created a liability on the company to replace it or to account for its value.

It is claimed that the by-law which provides for the issuing of certificates by the board of directors, in place of certificates lost or destroyed, on receiving adequate security to indemnify the company against loss consequent upon the issuing of such new certificates, relieves the company of the liability which would otherwise rest upon it.

The claim is,that if new certificates are issued, upon the order of the board of directors, made in good faith, on evidence satisfactory to them of the loss of the originals, that the company is discharged from all liability to the holder of the original certificate, although it may subsequently •appear that the original certificate had been transferred, instead of lost; that the effect of the new certificate is to supersede and invalidate the original, in whosesoever hands it may be.

But, in the opinion of a majority of the court, the issuing of the new certificates, under the by-law in question, has no such effect. The by-law is prescribed by the directors, and they have no authority to determine the equitable-rights of parties to the stock of the company, should they .assume to do so. The object of the by-law is to enable persons whose certificates appear to have been lost or destroyed to obtain others, on indemnifying the company against loss, in case other parties should assert rights against the company, under the original certificates. But it is not intended to affect the rights of such parties.

Whether the company is liable for the dividends paid on the stock, before they had notice of the transfer of the certificates to Eassett, depends upon other considerations.

Yoce, Perkins & Co. were the registered owners of the stock, and, by failing to have the stock transferred, Eassett consented that they might vote upon the stock, and, in the absence of notice to the company that he was the holder of the certificates, he took the risk of Yoce, Perkins & Co. drawing the dividends. Unlike the transfer of the stock,, the surrender or production of the certificates was not necessary to draw the dividends. Until the company were notified of the transfer of the certificates to Eassett, they were warranted in paying the dividends to Yoce, Perkins & Co., or to their order. And, by paying the dividends to Burke and Perkins, as purchasers under Yoce, Perkins & Co., the company are as fully protected as if the payments, had been made to Yoce, Perkins & Co., directly.

The railroad company also relies on the statute of limitations. •

• The answer sets up that the cause of action did not accrue within four years from the commencement of the action. The claim made in support of the plea is that the cause of action accrued at the time of the transfer of the stock to Burke and Perkins, on the 8th day of May, 1863.

We can not assent to this view. The certificates stated, in effect, that the stock would be transferred on the books of the company, upon the surrender of the certificates. Upon this statement of the company, the holder of the certificates had a right to rely, until the transfer was refused, or he had notice that the stock had been transferred to. other parties.

In the present case, the transfer was refused on the 3d of' April, 1872. Eassett, in his lifetime, had no notice of the transfer of the stock to other parties, nor had his administrators such notice, until a few months before the refusal of the company to allow the transfer to be made to them* and, on the 10th day of August, 1872, the action was commenced.

As Burke and Perkins are neither of them before us on this proceeding in error, we express no opinion as to their liability.

The findings of the court below do not distinguish between the value of the stock and the aggregate value of the stock and dividends. The entire judgment must therefore be reversed; and the cause is remanded to the district, court for further proceedings.


source: Caselaw Access Project

author: Okey, J.

license: Public Domain

text:
    Rothgeb v. Mauck.
    A petition was filed by an executor under the act of 1857 (54 Ohio L. 202;. 8; Rev. Stat., § 6202), in which he states that doubts are entertained by himself and others as to the validity of a certain provision in the testator’s will, requiring him to erect a monument; and that he desires the direction and judgment of the court whether the provision is valid; but it is not alleged that there is now in his hands, or will come within his control, any money or property which might be applied in defraying such expense : Held, That sufficient facts are not stated to require such direction or judgment of the court.
    Appeal from the Court of Common Pleas of Gallia county. Reserved in the district court.
    Wesley Rothgeb, in 1871, filed a petition in the Court of Common Pleas of Gallia county, as executor of Reuben Rothgeb, setting forth that on October 15, 1855, the last will and testament of said Reuben Rothgeb, who died in September, 1855, was admitted to probate in the Probate Court of Gallia county, a copy of which will is made a part of the petition ; that he, Wesley Rothgeb, the executor named in the will, thereupon gave bond, entered on the discharge of his duties, and took possession of the real and personal estate; and, further, that he has received the rents of the real estate; but that some of the heirs dispute the validity of the devises and bequests in the will; and there being doubts as to their validity, and the executor being unadvised what course to take, and what is the true effect and construction of the will, he prays that the court will construe the will and give him direction as to the validity of its provisions and such other relief as the case may require.
    The parties defendant are the testator’s heirs, who filed an answer averring that the will is void. Reuben Rothgeb had never married.
    By his will the testator directed that his personal effects and moneys should be applied to the extinguishment of his debts, and that any balance remaining due should be paid from the rents of his real estate, consisting of a farm, situated in Gallia county. The principal part of the debts was embraced in two mortgages on the farm, each for three hundred dollars. The testator was required to rent the farm, from time to time, during a period of twenty years, and after paying the debts he was directed to erect a marble monument. The size and form of the monument, .and the inscription to be placed thereon, are stated in the will. The proposed inscription contains expressions in relation to the existence of God and a future state, the divinity of Christ, and the origin of the Bible. The monument was not to be erected at the grave of the testator, but on a lot to be purchased by the executor for the purpose, and paid for out of the rents of the farm. There was no direction that even the name of the testator should appear on the monument.
    The third and fourth clauses of the will are as follows:
    “ Third. I give my said farm, at the end of said twenty years, to the best and most scientific farmer of or among my nephews who may then be of age, with this provision, that he pay to the next best of his competitors five hundred dollars on taking possession of the farm.

      “Fourth. I give three-fourths of the money which may be left and on hand to the best every-day housewife among my nieces, who may be eighteen years of age, and to the ■next best of her competitors I give the remaining fourth of said money.”
    No provision is made as to the manner in which the beneficiaries under these clauses are to be ascertained.

      S. A. Nash and Stallo & Kittredge, for plaintiff.

      Simeon Nash, for defendants.
   Okey, J.

A fair construction of the will requires us to say that the monument, if erected, can only be paid for out of the proceeds of Rothgeb’s personal estate existing at the time he died, and the rents of the farm during the period of twenty years thereafter. After the period of twenty years from the testator’s death, the executor had no further control over the real estate. Any direction which might be given to the executor should, therefore, have relation to such persoualty and rents.

According to well-settled principles, an executor charged with the execution of a trust, having reasonable doubt as to the disposition of funds in bis hands, has a right to apply to a court of equity for directions. Crosby v. Mason, 32 Conn. 482; Goodhue v. Clark, 37 N. H. 525; Wheeler v. Perry, 18 N. H. 307; Treadwell v. Cardis, 5 Gray, 341; Stevens v. Warren, 101 Mass. 564; Horah v. Horah, Winston’s (N. C.) L. and Eq., 2 pt. 107; Walrath v. Handy, 24 Howard’s Pr. 353. And see Collins v. Collins, 19 Ohio St. 468; Rhea v. Dick, 34 Ohio St. 420; 1 Redfield on Wills (4th ed.), 492.

In this state it is provided by statute that “ any executor, .administrator, or guardian may maintain a civil action in the court of common pleas, against the creditors, legatees, or distributees, or other parties, asking the direction or judgment of the court, in any matter affecting the tr'ust, estate, or property to be administered, and the rights of the parties in interest, in the same manner and as fully as was formerly entertained in courts of chancery.” (54 Ohio L. 202, § 8; Rev. Stat. § 6202.) See Lewin on Trusts (7th ed.), 320, 534.

• .To trace the origin of that jurisdiction, or define its exact boundaries, or show the manner in which it is exercised in England and the various states, is in this case unnecessary. The executor must show that “ he is interested” in the question: Horah v. Horah. He invokes the power of the court “ for his own safety :” Goodhue v. Clark. That power “ will not be exercised except in matters of importance-:” Crosby v. Mason. And, “without an allegation that there was property on which the will could take effect certainly, the complaint does not state facts sufficient to constitute a cause of action:” Walrath v. Handy.

The amount of personal property is not stated. Neither the size of the farm, its value, nor the amount of rents-appears. Nor is there any allegation that the-debts have-been paid, or that the executor has or will ever have one-dollar which could lawfully be applied in buying a lot or erecting a monument, if we should sustain the provisions of the will on that subject. Courts do not sit to decide abstract questions, but cases involving real, substantial rights. If this is true, as it clearly is, even where the effect of the opinion sought would be necessarily confined to the parties to the suit, a fortiori the rule applies to the questions propounded here. Moreover, this objection is distinctly made in the brief of counsel for defendants, to which counsel for plaintiff'have replied; but no application has been made for leave to amend the petition.

As to the devise in the third clause of the will, it is sufficient to say that its validity or invalidity is no concern of the plaintiff. And with respect to the bequest in the fourth clause, the same objection to relief exists as in case of the lot and monument. Besides, in relation to both clauses, it does not appear that all the persons from whom the -beneficiaries should be selected are before the court.

We all think that upon the facts stated in the record, a court of equity should express no opinion as to the validity of the provisions of the will.

Petition dismissed.


author: Botnton, J. White and Okey, J.J.,

text:
    City of Piqua v. Zimmerlin.
    1. An- ordinance of a municipal corporation was passed June 23, 1875, declaring- it unlawful for any person to keep open on Sunday, within the limits of the corporation, any house or shop where ale, beer, or porter was .habitually sold or furnished to be drunk: Held, that power to pass such ordinance was conferred on the corporation by section 199 of the municipal code, as amended March 27, 1875.
    2. A part of an ordinance may be void and the remainder valid.
    S. A final conviction and sentence before the mayor of a city or village, in a prosecution under the municipal code of 1869, could be examined and revised only in the mode therein provided.

      4. Section 180 of the municipal code did not authorize the mayor to return on the writ any facts disclosed by the evidence, except such as were noted by him, or certified in the nature of a bill of exceptions, at the-time of the trial.
    Error to the District Court of Miami county.
    The defendant in error was prosecuted before the mayor of the city of Piqua and a jury, for keeping open a bouse on Sunday, October 31, 1875, where beer was habitually sold and furnished to be drank in violation of the city ordinance.
    The ordinance was passed June 23, 1875, and was as follows:
    “ Section 1. Be it ordained by the Council of the Incorporated City of Piqua, That it shall be unlawful on the first day of the week, commonly called Sunday, to keep open in-any manner whatever, within the limits of said city, any house, shop, room, booth, arbor, coliar, or place where ale, porter, or beer is habitually sold or furnished to be drank, or to keep open-in any manner, any place of notorious or habitual resort for tippling and intemperance. And if any person or persons by himself, agent, or otherwise, shall, within the limits aforesaid, keep open any such house, shop, room, booth, arbor, cellar, or place, as aforesaid, on said first day of the week, commonly called Sunday, he, she, or they shall, on conviction thereof, before the mayor of saicl city, be fined in any sum of not less than twenty dollars, nor more than fifty dollars, and be ordered to stand committed until such fine and cost are paid.
    “ Section 2. That the selling or giving away to any person or persons, in, at, or about any such house, shop, room, booth, arbor, cellar, or place, or places of notorious resort for tippling and intemperance, on said first day of the week, any article or thing, usually sold or disposed of at such places, or the keeping 'open, or the allowing or permitting to be kept open any of the doors or entrances to any of the aforesaid houses, shops, rooms, booths, arbors, cellars, or other places, described in said first section, on said first day of the week, or the passing into or out of any such house, shop, room, booth, arbor, cellar, or other place, by any person or persons other than the proprietor or keeper thereof, on said first day of the week, or the lighting up, or the burning of lights in any such house, shop, room, booth, arbor, cellar, or other place, above described, on any part of the day or night of the said first day of the week, shall severally be held, prima facie, a keeping •open of such house, shop, room, booth, arbor, cellar, or other place, within the moaning of the first section of this ordinance, and when established to the satisfaction of the mayor of said city, shall subject the offender to the penalties therein set forth.”
    The prosecution terminated on November 17,1875, and i’esulted in the conviction of the defendant, and a fine of $30 and costs. On the 22d day of November the defendant moved for a new trial, on the ground that the mayor, during the recess of the court, and while the jury were deliberating on their verdict, at the request of the jury, went into their room, and, in the absence of the defendant and his counsel, gave them further instructions, by advising them that the validity of the ordinance was not a question for them to decide. An affidavit of a juror was read in support of the motion, but the motion was overruled. Whereupon a bill of exceptions was taken, setting out the motion, the affidavit in support of it, and the order overruling it. On error prosecuted, the court of common pleas affirmed the conviction and sentence. Whereupon the ease was carried to the district court, wherein it was determined that the ordinance under which the defendant was prosecuted was invalid and void, and an order entered dismissing the prosecution.
    To reverse this judgment is the object of the present proceeding in error.

      M. H. Jones, for plaintiff in error.

      S. S. & J. F. McKinney, for defendant in error.
   Botnton, J.

Section 199 of the municipal code, as-amended March 29,1875, conferred express power on municipal corporations to regulate ale, beer and porter houses and shops, and it was in the exercise of this power that the ordinance under which the defendant in error was convicted, was passed. The ground upon which it is contended that the ordinance is invalid, is, that it makes no general exception from its operation of cases of necessity or charity, or in behalf of those who conscientiously observe the seventh day of the week as a day of rest. Hence, it is said, that the same is repugnant to the general laws of the state, and consequently void.

In support of this claim The City of Canton v. Nist, 9 Ohio St. 489, is relied on. The provision of the statute which was under consideration in that case, and which was-claimed to confer power to pass the ordinance held to be-invalid, was the 83d section of the act to provide for the organization of cities and incorporated villages, passed May 3, 1852. Swan’s Rev. Stats. 964. That section conferred power upon municipal corporations to make and publish such by-laws and ordinances, not inconsistent with the laws of the state, as to them should seem necessary to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of such corporation and the inhabitants thereof. The defendant in that case was charged with keeping open his grocery, for the purpose of business, on Sunday, in violation of the provisions of the ordinance, and it was held that an ordinance prohibiting the opening of shops, and other business places, for the purpose of business on Sunday, without excepting, in conformity to the general laws of the state, cases of necessity and charity, and without exempting from its operation persons who conscientiously observe the seventh day of the week as Sabbath, was void. The only effect of this holding was to declare that the language of section 33 of said act did not authorize the passage of the-ordinance under wdiich the defendant was prosecuted. No question of the power of the corporation to regulate, or prohibit, ale and porter shops and houses, as authorized by the last clause of the 25th section of said act, was involved, nor was there any thing in the case that would have made discussion of that question either relevant or proper. The decision in that ease is, therefore, not decisive of the ■question involved in this. The question here is, whether the power to regulate ale, beer and porter houses and shops, given by the amended act of 1875, is sufficiently comprehensive in’its scope, to authorize the municipal authorities to prohibit the owner from keeping the same open on Sunday. We think it is. Such houses and shops are places of public entertainment, and in authorizing their regulation there can be no doubt that the legislature intended to ■confer power to place them under such reasonable restraint, as would mitigate the evils growing out of the business therein conducted.

If the power to regulate carries with it no power to require such places to be closed upon any day, or for any time, it is difficult to see what useful purpose the statute was designed to effect or accomplish. That the legislature may exercise such power will not be denied, and who can doubt, that, if the legislature were restricted by the constitution to the power to regulate the sale of intoxicating liquors, that inhibiting sales on Sunday, would be within the just exercise of the power thus restricted. Power to regulate carries with it power to restrain. Thomas v. Mount Vernon, 9 Ohio, 290 ; Vandine’s Case, 6 Pick. 190; 2 Comyn’s Digest, title Bye-Law, p. 283. And if the regulation or l’estraint is not unreasonable, the ordinance is valid. And it is no objection to its validity that similar regulations are not extended to all parts of the state. Burckholter v. McConnellsville, 20 Ohio St. 308.

In State v. Freeman, 38 N. H. 426, the charter, in pursuance of which the ordinance was passed under which the defendant, in that case, was prosecuted, authorized the city to adopt such by-laws, regulations, and ordinances as might seem to be for the well being of the city, and not 'repugnant to the constitution and laws of the state; and it was held, that an ordinance prohibiting the keeping open of restaurants after 10 o’clock at night, was within the power conferred by the charter. In that ease the grant of power to the city was much less specific in its terms, than the grant of power made by the provisions of our municipal code to municipal corporations, to regulate ale, beer and porter houses. Since 1831, it has, by general legislation, been unlawful for any tavern-keeper, or other person, to sell or barter on Sunday, any spirituous liquors, except to travelers. 1 S. & C. 448. And the exception in favor of travelers no longer prevails. Rev. Stats. § 6944. The selling or giving away of intoxicating liquors on election days, or the keeping open, on such days, of a place where such liquors are habitually sold, is, and long has been, prohibited by the statute. Rev. Stats. § 6948, (61 Ohio Laws, 24.) These acts are indicative of a policy with which the object sought to be accomplished by the passage of the ordinance here in question, is in complete accord.

They are police regulations established to secure public order, and all such regulations, whether enacted by the legislature directly, or established under power conferred upon municipal corporations, operate to restrain and abridge rights previously existing. But they are not for that reason void. The restraint imposed being for the public good, private interests must yield to the public welfare.

It is said, however, that the second section of the ordinance, in making certain facts prima facie evidence of guilt, is unreasonable in its provisions, and, therefore, that the whole ordinance is, for that reason, void. The conclusion does not necessarily follow, if the premise be admitted.

If it be true that the second section, either in whole or in any of its parts, is open to the objection stated, that circumstance does not affect the provisions of the first section, unless the two sections are so connected in their subject-matter, and inseparable in their provisions, as to lead to the inference that the fii’st section would not have been adopted without the second. The same rule applies to a by-law, or ordinance, that applies to a statute; and that is, that where the statute consists of severable and independent parts, having no general influence over one another, and a part is valid and a part is void, the part which is valid is operative, and will be carried into effect. Applying this principle to the point suggested, and it is at once relieved of all difficulty. The first section defines the offense. The second provides, that certain facts shall constitute prima facie evidence that the offense defined in the first section has been committed. The two sections are wholly distinct in their subject-matter, and in their purpose and object. The second section in no just sense qualifies the offense, but relates wholly to the evidence by which the offense may be supported or established. Assuming the second section to be unreasonable in declaring the lighting up of such room to be prima facie evidence of a keeping open, or to be unreasonable in other of its provisions, it in nowise affects the validity of the first section. As well might it be said, if a statute were void which declared that possession of stolen goods soon after the theft should be prima facie evidence that the possessor stole them, that the provision defining larceny was void also-.

The second section neither prescribes, nor does it profess to prescribe, a mode for conducting the trial. There is nothing in the record that either shows, or tends to show, that the defendant was convicted on any other than the most direct evidence that he committed the offense. No facts are certified. To say, assumiug the second section to be void, that a presumption arises that a conviction was-had upon proof of the facts which are declared by that section to be-prima facie evidence that the offense was committed, is an inversion of the rule, which requires the party who alleges error to exist, to show it affirmatively.

It is also urged, that, as the mayor instructed the jury that they had nothing whatever to do with the law, or ordinance, and that they were only to decide whether the-defendant was guilty or not under the ordinance as they found it, that this left them at liberty to convict the defendant on proof that a light was seen burning in his house.. But no such fact is legally made to appear. "What purports to be a bill of exceptions, containing evidence that such charge was given, was taken five days after the trial was over, and upon a motion for a new trial then made. The only provisions made for reviewing a final sentence or conviction before a mayor -by the law in force when the proceedings in the present case were had, were found in sections 125, 179, 180 and 181 of the municipal code. Van Buskirk v. The City of Newark, 26 Ohio St. 37. And the only mode of bringing the facts before the revising court was prescribed by section 180. That section required the mayor to return, on the writ previously allowed, all matters of record, or on file, touching the proceedings, or a transcript thereof, and any facts which may have been, noted by him, or certified in the nature of a bill of exceptions at the time of trial. No power is conferred upon the mayor, after the trial is at an end, and at a future day, to reopen the case and take further action, and to certify such action for revision. And a reviewing court acquires no jurisdiction to examine the question so certified. The bill of exceptions taken on November 22, 1875, was, therefore, wholly unauthorized, and laid no foundation for a review of the question therein sought to be raised.

The judgment of the district court is reversed, and that of the common pleas affirmed.

White and Okey, J.J.,

dissented from the judgment on the following ground: A municipal ordinance creating an offense, which prescribes an illegal mode of conducting the trial, is void. Hence, where the ordinance prescribes that certain acts shall be sufficient or prima fade evidence of the commission of the offense, which are not so in fact, and which the corporation can not make so, a conviction under the ordinance is illegal. The presumption is, that in trying the accused, the mayor followed the rule prescribed by the. ordinance.


author: McIlvaine, C. J.

text:
    Garrison Pratt v. The State of Ohio.
    1. Necessary and suitable clothing furnished by a husband to his wife, or purchased by her with money or means given to her by her husband for that purpose, does not become her separate property within the meaning of the statute concerning the rights and liabilities of married women.
    2. But articles of personal clothing purchased by a wife with her separate money or means are made her separate property by the act of March 30, 1871 (68 Ohio L. 48); and a conviction for the larceny of such goods under an indictment laying the property in the husband can not be sustained.
    3. In proving the value of personal clothing, on a trial for the larceny thereof, the testimony should not be confined to current prices among dealers in second-hand clothing.
    4. Where the separate property of a wife has been stolen from the family residence, such fact alone will not authorize a conviction under an indictment laying the property in the husband.
    Error to the Court of Common Pleas of Greene county.
    The plaintiff in error was convicted at the October term, 1879, of the Court of Common Pleas of Greene county, of the crime of grand larceny. The indictment charged the larceny of certain goods and chattels, the property of John E. Patton, to wit: One shawl of the value of $6.00; one silk dress of the value of $25.00; one dressing gown of the value of $10.00; and one pair of overshoes of the value of $1.00, on the 26th day of October, 1879.
    • The principal errors alleged are, that the verdict was contrary to the evidence, and that the court erred in its charge to the jury. It is also alleged that incompetent testimony was allowed to go to the jury.
    On the trial, John E. Patton, whose property was alleged to have been stolen, was called as a witness, and testified concerning the ownership of the property as follows: “ That the dressing gown belonged to him individually, but that the dress was originally bought by his wife with her own money. That he bad, some years ago, given her a sum of money to do what she pleased with, and reserved to himself no lien or claim of any kind on the property she bought with it, but gave her the money absolutely as her own ; and that with a part of that money she bought the silk dress. She bought the shawl also out of her own individual means. That subsequently to that he gave his wife more money, and with it she (as he was informed) bought the new silk with which the dress was made over, but gave it to her as her own and to do as she pleased with it, and without conditions.”
    Whereupon the court asked the witness whether the property, alleged to have been stolen, was under his control and" in his custody when stolen, to which he replied : “that he understood that he had the custody and control of all goods belonging to his family; that he had the custody and control of the dress and shawl just as he had the custody and control of all property in his house.”
    Upon the issue as to the ownership of the property, the court instructed the jury, that if they should find that the property mentioned in the indictment was stolen by the defendant, and “ was, at the time of the larceny, in the rightful custody and control of the person alleged in the indictment as being the owner thereof, to wit: John E. Patton, then the allegation that it was the property of such person is sufficiently proved.” And refused to charge, as requested by defendant, as follows: 1. “That if they (the jury) find from the testimony in this case, that any of the property mentioned in the indictment was, at the time of the larceny thereof, the property of the wife of the prosecuting witness, John E. Patton, that then said defendant can not be held in this case for the larceny of such property, and in estimating the value of the property stolen. Such of said property, as the evidence shows belonged to said wife, can not be by them taken into account.” 2. “That if the evidence in this case shows that the prosecuting witness, John E. Patton, gave money to his wife, and that she bought the dress named in the indictment therewith, and has, since she so bought it, exercised unlimited control over it as her individual property, only subject to such control or possession as said John F. Patton, the husband, as such, might have by said property being in his house; that then, aud in such ease, the dress in question is not the property of said John F. Patton.”
    It is also alleged for error, that the court permitted testimony to go to the jury as to the value of the'property, other than that based upon knowledge of the current market value of such goods. And it appears that, according to the current market value of second-hand clothing, the testimony offered would not sustain the finding of the jury that the property was worth $35.00.

      James A. Cook, for plaintiff in error.

      George K. Nash, Attorney-General, and T. L. Magruder, for the state.
   McIlvaine, C. J.

The jury found the value of the property stolen to be $35.00 — the minimum sum constituting grand larceny; and it is quite evident, from the testimony, that this finding included the value of each article mentioned in the indictment. Hence, the conviction was wrong, if any article named was improperly laid as the property of John F. Patton; or, if the actual market value of the goods was the only criterion of their worth.

It is not disputed that, at common law, an indictment for the larceny of a wife’s wearing apparel, laying the property in the husband, was good. It is contended, however, that under our statute the rule is different. The act of March 30, 1871, (68 Ohio L. 48) provides: “Any personal property, including rights in action, belonging to any woman at her marriage, or which may have come to her during coverture by gift, bequest, or inheritance, or by purchase with her separate money or means . . . shall, together with all the income, increase and profits thereof, be and remain her separate property, and under her sole control, and shall not be liable, to be taken by any process of law, for the debts of her husband. This act shall not affect the title of any husband to any personal property reduced to his possession, with the express assent of his wife; provided, that said personal property shall not be deemed to have been reduced to possession by the husband by Iris use, occupancy, care, or protection thereof,” etc.

Notwithstanding the very comprehensive terms of this statute, a majority of the court are of the opinion that they do not embrace the wearing apparel of the wife, furnished by the husband, or purchased hy her with money or means given to her by the husband for that purpose. As to such property, it was not intended by the statute to deprive the husband of all ownership and control; for surely, while the duty of the husband to furnish his wife with necessary and suitable clothing is continued, it was not inteudedto deprive him of the right to control and preserve it. Nor does it make any difference where a wife purchases her apparel with pin money, given to her by her husband to be expended according to her will and pleasure. Of such property, the possession of the wife is the possession of the husband.

It has been held, however, by the Supreme Court of • Indiana, that a statute similar to ours operates as to clothing of the wife acquired otherwise than from the husband, or through his means, so as to invest her with a separate estate therein. Stevens v. The State, 44 Ind. 469. See also, 17 Ala. 415; 119 Mass. 596; 51 Ill. 162; 1 Amer. L. Reg. 434.

And we are inclined to think that there is good gronuds for the distinction. Where the wdfe’s clolhing is furnished by the husband, in discharge of his marital duty toward her, the statute does not divest him of the property contrary to his intentions; while on the other hand, where the properly is otherwise acquired by the wife, th e statute simply prevents a title vesting in him by virtue of his marital relation. Under the statute, the “ gift,” which is declared to be the separate property of the wife, is a voluntary one, as all gifts must be, and does not embrace necessaries which a husband is under a legal duty to furnish his wife.

Erom the testimony in the record before os, it appears that the wife bought the shawl with her “individual means;” whether these means came from the husband or not is not disclosed; but, whether they did or did not, the jury were instructed to find the property in the husband, if they found that the shawl was “in his custody and under his control” at the time of the larceny. And it is quite evident, from the whole record, that the court below was of opinion, and that the jury may have so understood, that the mere fact that the goods were in the dwelling-house of the defendant, wdiere he was living with his wife, put them “ in the custody and under the control” of the husband, so as to vest in him such a special property as would authorize a conviction under the indictment. To say the least, this instruction was misleading. The jury ought to have been told, that if the shawl was not purchased with money given by the husband to his wife, the mere fact that the shawl was stolen from the family residence, did not authorize a finding of the property in the husband, as charged in the indictment.

In regard to the testimony admitted to prove the value of the goods stolen, we think there was no error. As was shown, on the trial below, we can readily perceive that there is no such market for partly-worn clothing, as will show the real value or worth of such articles ; and to confine the testimony to the market rates for second-hand clothing, would, in such cases, substantially close the door to all proof of value. The best rule for ascertaining the value of such property, would be to deduct from the market pi-ice of new goods, of like kind, a reasonable amount for the depreciation in value, caused by the wear and use.

Judgment reversed, and cause remanded for a new trial.