text:
    Commissioners, etc., v. Bank of Findley.
    1. Where a statute creates a new offense by prohibiting and making unlawful anything which was lawful before, and provides a specific remedy against such new offense (not antecedently unlawful) by a particular sanction and method of proceeding, that method of proceeding, and none other, must be preserved.
    2. By section 15 of “ an act to establish an independent treasury of tho State of Ohio,” any person advising, aiding, or participating in tho loaning of the public moneys, is, with the public officer who makes such loan, guilty of embezzlement, and, on conviction, is subject to imprisonment and to a fine in double the amount so embezzled. Such fine is a judgment in favor of the party whose funds aro so embezzled, to he collected as other judgments at law, and can only he satisfied or released by such party. Held, that for a violation of said section, by advising, aiding, or participating in lending the public moneys, this section provides for a new offense, and gives a specific remedy to the injured party in tho judgment therein provided for, and such remedy is exclusive of a civil action for the same offense.
    Error to tlie District Court of Hancock county.
    The action is in the name of the commissioners of Hancock county, and Is against Henry B. Wall, late treasurer of said county, the First National Bank of Findley, Elija P. Jones, and Charles E. Niles, defendants, to recover of them, the sum of $28,869.24, the amount for which it is alleged said late treasurer was a defaulter.
    The petition states: That Wall became treasurer in September, 1867, was re-elected in October, 1868, and entered upon his secoud term in September, 1869, and that, in August, 1870, he became a defaulter to the said amount, that be absconded and went to parts unknown, and that he was removed and his successor appointed and qualified.
    That, while acting as such treasurer, he collected taxes amounting to $150,000, each year, which was deposited in the county treasury according to law.
    That, about September 9, 1867, said Wall, as such treasurer, and the other defendants confederated together, to and with each other, -wrongfully and without authority of law, to remove said moneys, well knowing they wore such, from the county safe, and deposit the same in said bank, to be used and converted to the use of said bank, and said. Jones and Niles.
    That, in consummation of this unlawful scheme, it is charged, that said bank, and said Jones and Niles, “ did., advise, aid, and procure” said Wall to loan, and he did in, fact loau to them, sundry sums of money, at different times, during the time Wall was such treasurer, amounting-in the aggregate to over $54,000, for the accruing interest to be paid him.
    The petition then concludes:
    “ Plaintiffs say they do not know, and can not therefore state how much, or what part of said sums of money have been paid by the other defendants to the said Henry B. Wall, but they aver that whatever sums they may have so paid, were not returned to or paid into the said treasury. Plaintiffs aver that of tlie said several sums so loaned and deposited as hereinbefore stated, the sum of $28,869.24 remains wholly unpaid ; that so much thereof as belonged to the State of Ohio was afterward fully paid out of other moneys in the treasury of said county, and said sum belongs to said county of Hancock, the townships therein, and incorporated villages, and other public moneys of said county. Wherefore, the plaintiffs ask judgment against the said defendants for the sum of $28,869.24, with interest from August 20,1870.”
    To this petition Wall made no defense, and he is not now before tlie court. As against him no relief is here asked. The other defendants demurred on two grounds :
    1. The petition as to them does not state facts sufficient . to constitute a cause of action.
    2. The plaintiffs have no legal capacity to sue in a transaction of this kind.
    The court of common pleas sustained the demurrer on the second ground, without passing on the first, and dismissed the action.

      The district court affirmed this judgment, and the plaintiff now seeks a reversal.

      M. D. Shafer, for plaintiffs.

      J. F. Burket, for defendants, claimed:
    The only remedy for the wrongs complained of in the petition, is indictment and prosecution under section fifteen of the sub-treasury act. This express statutory remedy being given must be substantially followed. Mayer v. The Cincinnati German Building Association, 2 C. S. C. R. 836, 337.
    The loaning of public funds was prohibited in this state at an early day by statute, which provided a remedy for the violation thereof. The statutes on that subject have been repealed and amended from time to time, uutil the passage of the sub-treasury act of 1858, which repealed all previous laws on that subject.
    In the petition, in this ease, the treasurer is charged with loaning and depositing the public funds; and the other defendants are charged with advising, aiding, and participating ¿herein.
    These acts (except the loaning) are made unlawful for the first time in this state by the statute of 1858; and the remedy provided by said statute is indictment, prosecution, and fiue; and-that remedy must be pursued, and none other. Brooms Legal Maxims, 447; Smith’s Commentaries, 780; The Hartford and NewHaven R. R. Co. v. Kennedy, 12 Conn. 500; Andover and Medford Turnpike Co. v. Gould, 6 Mass. 44; The King v. Dickerson, 1 Saund. 134, note 4, page 136; Shepard v. the Corn, of Darke Co., 8 Ohio St. 354.
    This rule is fully recognized, and provided against, by the legislature of Ohio in a late statute. Laws of 1869, page 91.
    This remedy is simple and complete. It gives double the amount embezzled, and makes the fine operate as a judgment at law on all of the estate of the party so convicted, to be enforced by execution or other process for the use only of the party whose money was embezzled. And provides further that such judgment can be released or entered satisfied only by the party in interest, as aforesaid.
    It is the policy of the law that criminal acts shall be dearly established; hence it is right that the only remedy should be by indictment, in which full proof can be required.
    Section fifteen of the sub-treasury act is different from the penal statutes referred to in the case of Commissioners of Crawford county v. Orr, 16 Ohio St. 522, in this, that it makes the fine and judgment the property of the party injured, instead of the property of the state.
   Johnson, J.

The demurrer presented to the court below two points.

1. Did the petition contain a cause of action in favor of the commissioners of the county against the demurrants ?

2. Had said commissioners the legal capacity to bring the action ?

In the view we take of the case, it becomes unnecessary to determine the second point.

In considering the first, it is very important to ascertain the precise nature.of this alleged cause of action, and see upon what foundation it rests.

In substance, it is averred that Wall was treasurer ofi Hancock county from September, 1867, until Augusf, 1870; that during that time he collected taxes, etc., about the sum of $150,000 anuually, and paid the same into the treasury to be paid out according to law; and that, in August, 1870, he became a defaulter in the sum of $28,-869.24, and absconded to parts unknown.

It is further averred that these defendants unlawfully confederated with him, while he was such treasurer to abstract from the treasury the public moneys for their own use, and did advise, aid, and procure him to loan them, at sundry times during his term, several specified sums of money, amounting in the aggregate to over $54,000, they knowing it to be public moneys, he to receive the interest accruing on such loans.

It is further alleged that subsequent to these illegal loans, the treasurer became a defaulter as above stated, and that of the moneys so borrowed, the plaintiffs are not advised and cau not state how much these defendants repaid to the treasurer, but they charge that whatever be the amount so repaid to him, the amount of his defalcation, to wit: $28,869.24 was never by him returned to or paid into the treasury.

The petition is founded on section 15 of “ an act to establish an independent treasury of the State of Ohio.” (2 S. & C. 1606.)

That act makes it a high crime and misdemeanor for a county treasurer or other officer or person charged with the safekeeping and disbursement of the public moneys to “convert the same to the use of himself or any other person or party, or to invest or loan the same;” or if any person shall advise, aid, or in any manner participate in such act, he, as well as the public officer, shall be held in law to be guilty of embezzlement of the moneys so loaned, invested, or converted; and, upon prosecution by indictment and conviction, they shall be imprisoned in the penitentiary at hard labor not less than one year nor more than twenty-one years, and be fined equal to double the amount of the ' money or property so embezzled, which fine shall operate as a judgment at law on all of the estate of the party so convicted and sentenced, and shall be enforced by execution or other process for the use only of the party or parties whose money or other property has been so embezzled.

It is further provided that in all cases such fine so operating as a judgment shall only be released or entered satisfied by the party in interest as aforesaid.

The illegal acts charged, consisted in advising and procuring the treasurer to loan to these defendants the public moneys.

Under this statute the transaction was a high crime in all who were farticeps criminis, to this loaning of the public money.

Erom the foregoing it will be seen that this is not an ac- ‘ tion on this illegal contract of loaning, to recover the amount so loaned or any unpaid balance due on the contract.

Neither is it an action on an implied promise to pay, arising out of an existing indebtedness of the borrowers, for it is not alleged that they owe the county on this or any other account.

Nor is it an action founded on any wrongful and. unlawful acts of these defendants which caused or contributed to the defalcation.

It is not claimed that these defendants in any way aided, advised, or participated in the act of defalcation of the treasurer.

Eor aught that appears, they repaid to him the whole amount borrowed, and his embezzlement, which caused the defalcation, was his sole act, wholly unknown to defendants.

Whether the commissioners of the county could, in either of the foregoing cases, maintain an action, in their quasi corporate capacity, against these defendants, we do not find it necessary to consider or determine; but we are clearly of opinion that, in the case made in the-petition, no cause of action exists.

The gravamen of the charge is, that these defendants, having violated the statute, by advising, aiding, and participating in loaning to themselves these funds, are liable in a civil action for the amount of such loan, which the treasurer fails to replace in the county treasury, although they may have repaid to him the whole amount.

In the view'we have taken of these facts, and of the statute of which they are a violation, such an action is not maintainable.

It is clear that, at common law, no action would lie in favor of any one against defendants, unless it appeared they owed the county on such loan, or that they caused or contributed to the defalcation.

Without this scatut'e, therefore, no cause of action would exist.

The statute alone, gives a right of action for the unlawful acts charged.

It provides a full, adequate and complete remedy by fine in double the amount embezzled, and by imprisonment in the penitentiary.

This fine operates as a judgment at law in favor of the party interested, and can not be released, except by the party whose funds have been embezzled.

The process of the court, appropriate for the collection of any judgment, may be employed to restore the iujured party to his lost rights.

As against persons who aid or advise a public officer in violating this statute, or who participate with him in the fruits of such offense, this is a new offense, which imposes a new liability both criminal and civil. The fine imposed is a judgment in favor of the injured party.

This judgment is in double the amount that could be recovered in a civil action, and obviates the necessity of such an action.

It combines the elements of a penalty for a crime and a civil remedy for the injury caused by it.

If a civil action could be maintained on the same transaction, it would either bar a criminal prosecution, or give the party injured treble damages. We think this prosecution, fine, and judgment, as against these defendants, are in lieu of a civil action.

It comes within the well-known rule that the. statutory action is exclusive. It can not be regarded as cumulative, as no pre-existing right of action existed. The statute creates a new liability, and gives a judgment in double damages. This, we think, is exclusive, and the remedy given by the statute must be pursued.

While, as to the public officer, who would be liable independent of the statute, this remedy may be, and probably is, cumulative, yet, as to these defendants, we thiulc it is exclusive.

In such case, the rule is, says Lord Mansfield, in Rex v. Robinson, 2 Burr. 803 : “ That where a statute creates a new offense by prohibiting and making unlawful anything which was lawful before, and appoints a specific remedy against such new offense (not antecedently unlawful), by a particular sanction and a particular method of proceeding, that particular method of proceeding must be pursued and none other.”

The rule thus tersely stated, is part of the well-settled law of this state. Shepard v. Commissioners, 8 Ohio St. 354; The State ex rel. Gerke v. Board of Commissioners, 26 Ohio St. 369.

Nunierous authorities might be cited, but we content ourselves with only a few. Sedgwick on Stat. Law, 341-345; Smith’s Com. § 638, et seq.; Camden v. Allen, 2 Dutcher, 398; Victory v. Fitzpatrick, 8 Ind. 281; McCormick v. Terre Haute Railroad, 9 Ind. 283; Lang v. Scott, 1 Blackf. 405; Almy v. Harris, 5 John. 175; Bissel v. Larned, 16 Mass. 65; Livingstone v. Van Ingen, 9 John. 507; Andover v. Gould, 6 Mass. 41; 1 Wm. Saunders, 135, note 4, and 250, note 5.

In the case at bar, the statute makes that unlawful which was not so at common law, and appoints a specific remedy for the parties injured, as well as a punishment to the offender, and this remedy is exclusive.

Whatever may be the right of the commissioners to maintain a civil action to recover any public moneys in the hands of third parties, or for its conversion to their use, or for aiding and contributing to a defalcation of the treasurer (and of this we express no opinion), we think that for the offense alleged against these defendants, the only remedy is that prescribed in the statute, which alone makes their act unlawful, and which prescribes a specific remedy for such unlawful act.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The Commissioners of Hancock Co. v. Brand, et al.
    Error to District Court of Hancock county.
   The legal questions are the same as in the Commissioners v. First National Bank, just decided.

Judgment affirmed.


author: Wright, J. Scott, J., dissenting.

text:
    Henkle v. McClure.
    1. Evidence must ba confined to the issue, and even for the purpose of corroborating the testimony of witnesses, an inquiry into facts entirely collateral, leading to a controversy over matters altogether foreign to the case before the court, can not be permitted.
    2. The effect of incompetent testimony once admitted, can not be done away with, except by such a charge to the jury as will enforce them to disregard it completely.
    Error to the District Court of Clark county.
    On appeal from a justice, McClure filed his petition in the Court of Common Pleas of Clarke county against Henkle, averring that defendant agreed to exchange with plaintiff, a wagon for ahorse, and pay the plaintiff $80 boot money; that the trade was made, the horse delivered to defendant and wagon to plaintiff, but defendant has never paid the boot mouey, and judgment is asked for the amount.
    Iu an amended answer, Henkle avers that he was owner of a wagon, and one Wesley Hedges bought it for the purpose of trading for plaintiff's horse, and Hedges did exchange the wagon for two horses of plaintiff; that defendant was present at the trade, but not a party to the contract, though by an arrangement between himself and Hedges, he agreed to purchase one of the horses from Hedges in case the trade was effected; all of which plaintiff, McClure, knew.
    Another defense and counterclaim is set up, which it is not necessary to consider.
    The verdict was for defendant, Henkle, and judgment thereon.
    A petition in error was filed in the district court, where the judgment of the common pleas was reversed. To reverse this judgment of the district court, a petition in error was filed in the supreme court.
    The journal entry shows that the district court founded its judgment upon errors in the first and sixth paragraphs of the bill of exceptions, which are as follows:

      “Par. I. The plaintiff) to maintain the issue on his part, offered testimony tending to prove that the plaintiff exchanged a horse with the defendant for a wagon, which the plaintiff alleged to belong at that time to the defendant; and that the defendant promised and agreed to pay him,the plaintiff, eighty dollars in said exchange, as the difference between the value of said horse and said wagon; and that the defendant took possession of said horse and the plaintiff took possession of said wagon under and by virtue of said alleged contract; and that the defendant retained possession of said horse for about two weeks thereafter, and that one, Wesley Hedges, said in the presence of the parties at the time of said exchange, that if defendant, Henkle, traded the said wagon for the one horse belonging to the plaintiff) he (Hedges) would buy a certain other horse belonging to the plaintiff, and that said Hedges did accordingly purchase plaintiff’s other horse and took possession thereof; and after the conclusion of the testimony on the part of the plaintiff) the defendant, to maintain the issue on his part, offered testimony tending to prove that he did not own the wagon aforesaid, and that he made no exchange with the plaintiff) but on the contrary, the said wagon belonged to said Hedges. That the said Hedges, himself, bought both of the said horses of the' plaintiff and gave him in exchange thereof the said wagon, leaving a balance in favor of the

      plaintiff, which was, by the terms of the agreement of said trade or exchange between said Hedges and plaintiff', to be applied in part payment of a debt which the said Hedges had against the plaintiff as the administrator of John McClure, deceased, who was a son of the plaintiff; and thereupon, the defendant, to further maintain the issue on his part, further offered to prove by said Wesley Hedges, who had already given testimony to prove all the matters aforesaid by defendant to maintain the issue on his part, that at the time of the alleged exchange and agreement for the payment of said indebtedness the estate of John McClure was, in fact, indebted to him, and that the plaintiff, his administrator and father, knew all about said indebtedness and admitted it, to which testimony of said Hedges, as to the existence of said indebtedness and the admission and knowledge of plaintiff' of the same, the plaintiff' objected, which objection was overruled by the court and the same permitted to go to the jury.” Exception was duly taken.

      “Par. VI. And the plaintiff' being recalled to give rebutting evidence, and in such examination having given evidence tending to prove that no indebtedness existed in favor .of Hedges against the estate of John McClure at the time of said exchange, and that it was not understood or admitted by Jhim at the time of said exchange that the said indebtedness existed, and that no such agreement was made by him with said Hedges for the payment of any such indebtedness, or any exchange or trade made with said Hedges, as claimed by the defendant from the evidence offered as hereinbefore stated, and having testified fully in reference thereto, to further maintain the issue on his part, the plaintiff called II. P. Willis and inquired of him whether the plaintiff', as administrator of the estate of said John McClure, had not paid certain claims to him existing against the firm of Hedges & McClure, and also offered by other witnesses to prove the payment of other claims against the firm of McClure & Hedges, which had been made by said Hedges in the name of the firm composed of the said deceased and Hedges, and offered, by testimony of said Willis and others, to prove in detail the state of the partnership and other accounts, between said Hedges and said deceased, to show the various items of account between them and the state of their mutual account as individuals, as well as co-partners, for the purpose of showing that upon a true adjustment of said accounts, no indebtedness, in fact, existed from the estate of said John McClure to said Hedges.” To all of which defendant objected, and the court sustained the objection, ruling out the evidence, because not material, but collateral and too remote. Exception was duly taken.
    The court, as to the question of the indebtedness of the estate of John McClure, deceased, to Wesley Hedges, charged the jury, in substance, that, “ whether such indebtedness existed or not was not of itself material in the case; that such indebtedness could not be investigated in detail or adjusted in this suit; that if such indebtedness existed, as claimed by the defendant, at the time of the trade, the plaintiff was under no obligations to pay the same by his own property; that if no such indebtedness was supposed or admitted by him to exist, or he did not desire to pay it in this way, it would be a circumstance tending to corroborate his claim; that he made no such bargain for its payment, as claimed by the defendant, and which they should consider in connection with the other evidence in determining the question ; but if, on the contrary, such indebtedness existed as was admitted by the plaintiff, and which he desired to pay, though he was not bound to do so, yet he might agree to pay the same by the sale of his own property, and if they found such to be the fact, it would be a circumstance tending to corroborate the testimony of said Hedges and the claim of the defendant, which they should consider in connection with the other evidence, for the purpose of determining whether such bargain was in fact made by him as claimed by the defendant; but, though such indebtedness existed, and was claimed by Hedges, yet, if the plaintiff did not admit it, or admitting, yet Avas unwilling to pay it in the manner it is claimed by the defendant to have been paid, such indebtedness would be no evidence tending to corroborate the making of such contract as is claimed by the defendant to have been made by the plaintiff.”

      S. A. Bowm.an, for plaintiff in error.

      Spence $ Auihur, for defendant in error.
   Wright, J.

The issue in the case was this: McClure claimed that he made the trade of a horse for a wagon with Plenkle, and Henkle was to pay him the boot which is sought to be recovered. Henkle claims that, though he was present, the trade was made, not with him, but with Hedges. The simple question, then is : With whom was the trade made? With Henkle or with Hedges?

Henkle, in order to throw the liability upon Hedges, offered to prove that the estate of John McClure was in fact indebted to Hedges, and that plaintiff, the administrator and father of John McClure, knew all about said indebtedness, admitted it, and the boot money was to offset it. The evidence as to the fact of this indebtedness was what ivas admitted against objection. The purpose of the testimony was this: Henkle wanted to show the likelihood of his story by showing that John McClure’s estate owed Hedges, and that Hedges wanted the boot money to go against this debt, thus paying himself; therefore it was probable that he made the trade, instead of Henkle, who had no such motive.

Doubtless it was competent to give in evidence what occurred at the trade. If Samuel McClure then admitted that his son’s estate owed Hedges, and agreed that such indebtedness should go against the boot money, this might be shown as being part of the agreement which was actually made, and by which the parties must abide. But when it comes to the further proposition that there was such a debt in point of fact existing, this we think entirely a collateral matter and foreign to the issue. Nothing of the kind is alluded to in the pleadings, and, if it were, we still can not see how it would be admissible. The point of controversy was : Did Hedges owe Samuel McClure ? And it does not tend to elucidate this matter by showing that John McClure’s estate owed Hedges. It would cull upon the court and jury to investigate the state of affairs between the McClure estate and Hedges, and thus the inquiry would proceed, not to the investigation of the case between plaintiff' and defendant, but between defendant and a third person not a party to the action. The trouble attending such a procedure is shown by the case before us. As soon as Hedges was allowed to show that John McClure’s estate did owe him, then the plaintiff proposed to go into the whole state of accounts between John McClure and Hedges, who had been in partnership, to prove that in point of fact no such indebtedness existed. The proposal involved not only the partnership, but also the individual accounts of McClure and Hedges. Such an investigation might be interminable, and was certainly irrelevant here. We are all of opinion, therefore, that the evidence as to- the fact of this alleged indebtedness was inadmissible.

But it is claimed that if the evidence was improperly admitted, the charge of the court did away -with any harm such admission might have occasioned.

The court did not squarely rule the evidence out, though they did say that, whether the indebtedness existed or not, was not of itself material in the case; but proceed further to say what might have misled the jury into believing that the fact itself might be corroborative of the claim of one party or the other, according as that fact was found to exist or not. It is stated that if no such indebtedness was supposed or admitted by him to exist, it would be a circumstance tending to corroborate his claim. Inasmuch as the court had allowed the evidence to be heard, and a vigorous contest had been made on the subject, the jury might have thought that if there had been no such debt, plaintiff could neither have supposed nor admitted its existence. They would naturally, therefore, consider the fact of the indebtedness as affording the shortest way out of the difficulty.

And, upon the other hand, it was said that if such indebtedness existed, was admitted by plaintiff, and he desired to pay it, this would tend to corroborate the defendant, Hedges. The fact of the indebtedness is here placed first in order of the facts, as seeming to be the one of chief importance, upon which all the others hinged, as upon the supposition of its existence, the further circumstances of its admission, and the desire to pay it, might seem to follow, when they would not upon a contrary hypothesis.

In conclusion, the court say: “ But though such indebtedness existed, and was claimed by Hedges, yet if the plaintiff' did not admit it, or, admitting, yet was unwilling to pay it in the manner it is claimed by the defendant to have been paid, such indebtedness would be no evidence tending to corroborate the making of such contract, as if claimed by the defendant to have been made by the plaintiff.”

It is true that this comes about as near to ruling the testimony out as can be done without actually doing it. But the fact that it was not actually done might have led the jury to suppose the reason therefor was sufficient. It is difficult to tell what effect evidence once admitted may have upon the triers of fact, but the impression made by hearing what the court has declared to be competent testimony can hardly be removed by anything short of a flat direction that it must be disregarded. Even then it can not always be known that tbe direction of the court is followed.

To a majority of the court it appears that the effect of the incompetent testimony was not dissipated by the charge of the court, and the judgment of the district court is affirmed.

Scott, J., dissenting.

I think the judgment of the court of common pleas should not have been reversed by the district court. The only error found by the majority of my brethren to have occurred upon the trial, and which they think justified the reversal of the judgment, is that the court permitted the witness, Hedges, to testify that at the time of making the contract in question the estate of the plaintiff's deceased son, of which the plaintiff was administrator, was indebted to the witness. If it be conceded that this evidence was improperly admitted, yet, under the charge of the court, it could not have prejudiced the defendant, and was in fact withdrawn from the consideration of the jury-

The judge clearly stated to the jury that the mere fact of such indebtedness was immaterial in the trial of the issues submitted to them. But that if the plaintiff, when the contract was entered into, admitted such indebtedness, and desired to pay the same by the sale of his own property, such facts, if found by them, might properly be considered in connection with the other evidence in the case, as tending to corroborate the testimony of Hedges and the claim of the defendant. The court said to the jury, speaking of the supposed indebtedness : “ Yet if the plaintiff did not admit it, or, admitting, yet was unwilling to pay it in the manner it is claimed by the defendant to have been paid, such indebtedness would be no evidence tending to corroborate the making of such contract as is claimed by the defendant to have been made by the plaintiff.” The jury was thus restricted to the consideration of the evidence bearing upon the terms of the contract, and the res gestee occurring at the time when it was entered into. Under such a charge, I can not conceive how the plaintiff below could have been prejudiced by the evidence complained of

Day, C. J., also dissented.


author: Scott, J.

text:
    Unger v. Leiter.
    1. The mere loaning of money tp a judgment debtor, to bo applied by him in part satisfaction of a judgment which is a lien upon the debtor’s land does not operate to transfer such lien, in whole or in part, to the lender; even though it was understood between the parties to the transaction, that it should have that effect.
    2. "Where, in a suit brought to enforce a vendor’s lien for purchase money, to which the vendee and his wife, and also the holder of a subsequent mortgage executed by the vendee alone, are made defendants, and tho proceeds of sale of the land covered by the liens are more than sufficient to discharge the vendor's claim, the wife is entitled, as against such mortgagee, to assert her contingent right of dower in the surplus fund.
    S. But such right of the wife must be protected in a mode which will pot interfere with the right of the mortgagee to subject the whole estate of the husband in the premises, to the present satisfaction of the mortgage debt, in its order of priority.
    4. Therefore, when such surplus is insufficient to discharge fully the mortgage debt, the court should not (against the will of the mortgagee) direct one-third of the surplus fund to be put on interest by the sheriff, during the life of the wife, for the purpose of securing her contingent dower interest.
    5. The proper course, in such case, is to award to the wife from the surplus fund, the value of her contingent right of dower therein, to be ascertained by reference to the tables of recognized authority on that subject, in connection with the state of health, and constitutional-vigor of. the wife and her husband.
    Error to the Superior Court of Montgomery county.

      Howard & Howard, for plaintiff in error.

      Young & Gottschall, for defendants in error.
   Scott, J.

The action in the court below was brought by mortgagees and holders of vendor’s liens, to subject certain real estate of their debtor, Israel Stailey, to the satisfaction of their liens. The other lienholders, as well as Stailey and his wife, were made parties defendant. Among them was Susan Unger, the plaintiff in error, who held a mortgage against the premises to secure a debt of $5,000 or more, due her from Stailey.

The property incumbered by the liens was sold by order of the court, and the proceeds were found to be insufficient to discharge all the liens. The questions made here arise on the order of the court below, making distribution of the fund arising from the sale.

One of the defendants, Adam Olay, who was made a party on his own motion, filed an answer, setting up “ that, April 1, 1871, he furnished, by way of advancement to pay judgments against Israel Stailey, then resting as liens upon the premises in the petition described, the sum of $400; that subsequent thereto Israel Stailey paid him, or refunded to him, $250, leaving unpaid $150; that the said judgments were rendered on notes given by Israel Stailey to secure the purchase money due plaintiff, remaining unpaid, upon said premises, and the said Adam Olay avers that in so advancing said money, so much of the amount of said judgments against the said Israel Stailey, with said lien upon said premises, became his own, and the payment by Israel Stailey of the $250 released his right only to that extent, leaving $150 still due the said Adam Olay, with the said lien upon said premises, all of which was then -well understood by the said Israel Stailey, and was agreed to between Israel Stailey and the said Adam Clay, and the said $150 balance is still unpaid, and the interest, $19.25, the whole amount, $169.25.’’

This claim was held by the court below to be a valid lien upon the premises, and priority was given to it over the mortgage of Susan Unger. Of this she complains, and as we think, not without reason.

A mere understanding between the borrower and lender of money, that the sum loaned shall be a lien upon the borrower’s real estate, can not affect the rights of bona fide mortgages. Nor is the case altered by the fact that the money was borrowed for the purpose of partially paying a judgment against the borrower. If the money borrowed by Stailey, was in fact so applied (which does not appear), the only effect would be, to extinguish, pro tanto, the judgment debt, aud its lien, and not to create or tranfer a lien. The judgment against Stailey gave him no lien which he could transfer, by an understanding, or otherwise. And it makes no difference that the debt evidenced by the judgment was for purchase money. A vendor’s lien is personal and can not, ordinarily, be transferred even by the vendor, much less by the sole act of the vendee. We all think the court below erred in directing the payment of this claim, and thereby diminishing the amount properly payable to the plaintiff' in error.

But another question, less easy of solution, arises on the record before us. Nancy Stailey, the wife of Israel Stailey (who was the principal defendant), answered in the case, setting up that she had a contingent right of dower in the premises. She admitted that as against the plaintiff’s claim, for which he held a vendor’s lien, she could not gainsay his right to have the premises sold free and discharged from her inchoate dower interest, yet she averred that the premises greatly exceeded in value the amount of the vendor’s lien and all other liens binding her interest in the premises ; and she asked that after the payment of all such liens, her contingent right of dower in the residue of the proceeds of sale should be protected, as against the other lienholders, and particularly as against the mortgage of plaintiff in error, to which she was not a party. The premises were accordingly sold free from Mrs. Stailey’s dower rights. By its order of distribution, the court provided for the payment in full of costs, taxes, and all the liens as against which Mrs. Stailey could not assert a right of dower; and finding that Susan Unger’s mortgage was the next lien, that it was subject to the contingent right of dower of Mrs. Stailey, and that the residue of the fund was insufficient for its payment in full, awarded to Susan Unger, against her exception, only two-thirds of such residue.

As to the remaining third, the court ordered it to be put at interest by the sheriff, that the interest accruing thereon should be paid to Susan Unger during the joint lives of Stailey and his wife; that if Stailey should die, leaving his wife surviving him, the interest should then be paid to Mrs. Stailey during her life, and that upon her death the principal should be paid to Susan Unger.

We are not disposed to question the right of Mrs. Stailey, after the payment of all liens which bound her interest in the land, to have the benefit of her contingent right of dower in the surplus fund. She had a legal interest in the land in virtue of her marriage, and the seizin of her husban d. Though only inchoate, it was valuable, and she could not be deprived of it for the benefit of her husband’s creditors, except by her own voluntary act. Black v. Kuhlman, 30 Ohio St. 196.

The order of the court below, would secure all the contingent rights of Mrs. Stailey, if the fund should be safely kept at interest by the sheriff. Aud the mode adopted by the court would perhaps be unobjectionable, if assented to by Susan Unger, the mortgagee. A similar order was made in the case of Benton v. Nanny, 8 Barb. 618. Mr. Scribner, in his work on Dower, regards the intrinsic justice of protecting such contingent rights of dower as admitting of no doubt; though he sugests that the power of the court to make such an order, in the exercise of its ordinary equity jurisdiction, may be questionable. Vol. I. 478. We think that in protecting the contingent rights of the wife, a method should be adopted which will hot conflict with the clear rights of the husband’s creditors.

I think it was the clear right of Miss Unger,.as the mortgagee of Israel Stailey, to have his interest and estate in the premises sold, and to have the proceeds applied presently on her mortgage, in its order of priority; and to be at liberty to proceed by due course of law to collect the residue of her debt, if she could, from her debtor. The court below found that $3,745.62 remained after paying all claims in which Mrs. Stailey had released her dower. One-third of this sum — to wit, $1,248.62 — was placed in the hands of the sheriff, to secure her contingent dower interest. All of this latter sum, except so much as represented the value of her contingent dower, was equitably applicable to the payment of Miss Unger’s mortgage, as it was the proceeds of her debtor’s interest in the mortgaged premises. But the order of the court places the whole of the latter sum beyond the reach of the mortgagee during the life of Mrs. Stailey; to be paid to the mortgagee or her heirs possibly thirty or forty years hence, if it shall not, in the meantime, have been wholly lost through the fault of a trustee appointed against her will. And, till the death of Mrs. Stailey, it can not be ascertained how much of the mortgage debt will be discharged by means of this proceeding and from this uncertainty the collection of the residue will be rendered difficult, if not impossible. We think the just claims of a mortgage creditor can not rightly be thus suspended during the life of the mortgagor’s wife, for the purpose of securing an inchoate right of dower.

We think all that Mrs. Stailey can ask is, that the value of her contingent interest in the surplus fund remaining after payment of the liens for which her interest is bound, shall be paid to her out of the fund; and to the residue, the plaintiff in error is entitled under her mortgage.

The value of such contingent interest maybe ascertained by reference to the tables of recognized authority on that subject, in connection with the state of health and constitutional vigor of the wife and her husband.

The order of distribution made by the court below will be reversed, so far as relates to the claim of Adam Clay, and so far as relates to the disposition of the surplus fund, and the case be remanded for distribution of said surplus funds as herein indicated.

Johnson atid Wrisht, J.J., dissented to all but the first proposition of the syllabus.


author: Day, Chief Judge.

text:
    Neff v. City of Cincinnati.
    1. Under the provisions of the statute authorizing a municipal corporation to appropriate land to a public use, such corporation must secure an “inquiry into and assessment of compensation” by a jury to the owner of the 'property sought to be appropriated, which inquiry and assessment must be, not merely nominal, but actual, and made upon proof of the value of the property, or the corporation may be defeated in the appropriation; it is therefore not such error as will warrant the reversal of a judgment for the court before which the inquiry is held to permit such corporation to open and close the evidence and argument to the jury.
    2. When a question is asked of a witness, which is objected to, and the objection is sustained, the ruling will not be reviewed on error, unless the exception taken shows what it was proposed to prove.
    3. On an inquiry before a jury for the assessment of compensation to the property owners for land sought to be appropriated for a public use, a civil engineer testified that he had computed the quantity contained in each of the lots described in the application for the appropriation, and had noted the square feet contained in each lot, on a copy of the plat contained in the application, which paper the court permitted to be given to the jury as a memorandum of the quantity of land contained in each one of the lots, as testified to by the witness: Held, not to be error.
    Error to tbe Court of Common Pleas of Hamilton county. Reserved in tbe district court.
    Tbe facts are sufficiently stated in tbe opinion.

      Goodman & Storer, for plaintiff in error:
    ¥e claim that tbe right to opeu and close was with tbe defendants (plaintiffs in error bere).
    The affirmation of the issue is upon tbe property owner.
    Tbe issue is, not what is tbe amount of damage, but, first, is there any damage ? second, if so, bow much ? .The issue really is: Can tbe property owner recover damages ? To do so be must prove them, and it is for tbe jury to say whether be has done so; and if they find be has, fix the compensation.

      Where the damages are unliquidated, the burden of proof is upon the party claiming to recover them, irrespective of the title of the action, or who is nominal plaintiff. Wooton v. Barton, 1 Mood. & R. 518; Geach v. Scott, 14 M. & W. 95; and a refusal to allow the nominal defendant to open and close, under such circumstances, is error, to be reversed by an appellate court. Mercer v. Whall, 5 Q. B. 447; Ashley v. Bates, 15 M. & W. 589; Davis v. Mason, 4 Pick. 158; Brooke v. Barrett, 7 Ib. 98; Robinson v. Hitchcock, 8. Met. 64, Rohun v. Hanson, 11 Cush. 44; Young v. Highland, 9 Gratt. 18; O. & C. R. R. Co. v. Barlow, 3 Oregon, 311; Singleton v. Willett, 1 N. & McC. 355; B. & O. R. R. Co. v. McWhinney, 36 Ind. 436; McNutt & Ross v. Kaufman, 26 Ohio St. 127; Railroad Co. v. Clapp, 1 Cush. 559; 111 Mass. 543; Burt v. Wigglesworth, 117 Mass. Mass. 306; Railroad v. Bonnell, 34 N. J. 479; Mitchell v. Thornton, 21 Gratt. 164; Doran v. Railroad Co., 17 Minn. 188; Railroad v. Murphy, 19 Ib. 506.

      Bates, Perkins 7 Goetz, for defendant in error.
    As to whose right it is to open and close.
    Past and present statutory law of Ohio will not help us on this point.
    The legislature evidently thought the owner would not have the right to open and close, unless given him by legislation, and, accordingly, in appropriations by private corporations, have so interposed, S. & C. 370, § (356), now repealed and supplied by 69 Ohio L. 95, § 23, which latter act, repealed by § 25, is not to be applied to municipal authorities, although § 1 says, “ any and every corporation.”
    This, then, is the law as to private corporations. On the other hand, in the only instance which we can find in which a public corporation is provided for, the opposite rule is adopted, and the state board of public works has thereby the open and close. S. & C. 1255.
    As to all other public corporations, our statutes are silent.
    In 1 Phillips’ Ev. (Cowen & Hill ed.) 817, et seq., may be found a summary of eases on the general principal of open and close.
    We suppose where statutes are silent the law is either that judicial discretion on the point is supreme, or else is revisble, only when prejudice is shown ; it is indifferent in this case, which is the rule. This is held in the following cases: Fry v. Bennett, 28 N. Y. 324, 329; Albany Northern R. Co. v. Bansing, 16 Barb. 68; Preston v. Walker, 26 Iowa, 205; Marshall v. American Express Co., 7 Wis. 1; Lexington Ins. Co. v. Paver, 16 Ohio 324, 330; C. & S. P. Co. v. Blake, 12 Rich. L. (S. C.) 634.
    Although the right to open and close is one of very doubtful benefit to its possessor, and although circumstances have rendered the city’s interest in this litigation very small, we give the court the best light we can on the prineples of the question, assuming for the sake of the argument, that the ruling below is revisable here, and that the test is to seek the burden of proof. Is not this, then on the city ?
    The land taken is presumed to be worth something, for everything must have some value. 13 Ohio, 401; 10 Ohio St. 575; 2 Ohio St. 583.
    In the absence of claimant, the city therefore can not, by putting in no evidence, get the land for nothing; she must show some evidence of value, which puts the burden on her, and she must begin the case.
    Often the owner is an unknown quantity, and is brought in by publication. Suppose, too, he lets'the case go by default, or as frequently happens, when the property is a little corner or narrow strip, or out of the way scrap, the owner is contented to take whatever may be awarded, and lets the city’s lawyers do the whole without retaining counsel, making a fight, or appearing at all. In all these cases there is no one to made a beginning, except tbe city; the evidence against her is merely in the nature of rebuttal, and may be omitted from the trial, if the owner chooses. If the city does not begin in such a case, who will ? She will get the property for nothing if she does not begin.
   Day, Chief Judge.

In October, 1872, the city of Cincinnati filed its application in the Probate Court of Hamilton county, to appropriate certain lands of Narcissa W. Neff and others, the plaintiffs in error, for a street. From the judgment of the probate court, awarding damages, the plaintiffs in error appealed to the court of common pleas. At the January term, 1873, of that court, the cause was tried, and the jury rendered a verdict awarding damages. The court rendered judgment on the verdict. Thereupon the plaintiffs in error filed their petition for review, and the court made a report in the nature of a bill of exceptions, which, with the petition for review, was filed in the district court, in accoi’dance with section 529 of the municipal- code.

On the trial* the plaintiffs in error claimed the right to open and close the evidence and argument to the jury, which the court denied, and permitted the city to open and close the evidence and argument; to all which the plaintiffs in-error excepted, and now claim the ruling to be erroneous.

The proceeding was under the provisions of the municipal code, to appropriate land for public use. Under the constitution of the state, the owners of land so appropriated are entitled to compensation in money. To obtain the land the law requires an assessment of such compensation to be made by a jury. For this purpose the municipM corporation is required to notify the land-owners of its application ; and, upon proof of such notice, as required by law, the court must set a time “for the inquiry into and assessment of compensation,” by a jury to be impaneled for that purpose. No pleadings are filed by the parties, nor is an issue of fact in any form submitted to the jury. “The inquiry into and assessment of compensation” comprise all the duties of the jury. This was the character of the trial in which the question is made as to which party is entitled to begin.

The statute providing for the appropriation of land for the “ public works ” of the state, and for the assessment by a jury of the amount to be paid to the owners, declares that “ the state shall be entitled to open, and close, in giving testimony, and in the argument. S. & C. 1255. On-the other hand, the statute in regard to appropriations by general corporations, secures to the land owner the rights, in argument to the jury, of a party holding the affirmative. 69 Ohio L. 95, § 23. But, in regard to appropriations under the municipal code, no provision is made on this subject. Such cases, then, not being controlled by any statutory provision, as to which of the parties must begin before the jury, must necessarily be governed by the rules of the common law, or in analogy to the corresponding provisions of the code of civil procedure.

In.either case, the result will be the same, for there is no substantial difference, in this respect, between the practice prescribed by the code, and that of the common law. The code provides that the party, who would be defeated, if no evidence were to be given on either side, must first produce his evidence; and that the party required first to produce his evidence, shall have the opening and closing argument. § 266. At the time the code of civil procedure was adopted, the rule, as recognized by the supreme court of this state, was, “ that the party having the affirmative of the issue, shall open and close ; ” and, in Lexington Ins. Co. v. Paver, 16 Ohio, 330, Hitchcock, J., in stating the rule upon this subject, says: “Where, by the pleadings, it is apparent that no evidence is required from the plaintiff', the defendant ought to open ; but if any, no matter how slight, proof is required of the.plaintiff, he must be allowed to go forward.” And the general rule of the English courts seems to be, that “ the party entitled to begin, is he who would have a verdict against him if no evidence were given on either side.” 1 Arch. Pr. 385; Geach v. Ingall, 14 M. & W. 95.

“ In considering, however, which party ought to begin” (it is said in 1 Arch. Pr. 385), “ it is not so much the form of the issue which is to be considered as the substance and effect of it; and the judge will consider what is the substantial fact tó be made out, and on whom it lies to make it out.” Ashby v. Bates, 15 M. & W. 589. Accordingly, it seems to be settled that in “actions where the plaintiff' seeks to recover actual damages of an unascertained amount, he is entitled to begin, although the affirmative of the issue may, in point of form, be with the defendant;” for, although the plaintiff' might be entitled to nominal damages upon the pleadings, if no proof of his actual damage be given he would be substantially defeated. Carter v. Jones, 1 Moody & Robinson, 281; Mercer v. Whall, 5 A. & E. (48 Eng. Com. Law), 447. The rule as thus explained is followed in England and in the courts of this country. Huntington v. Conkey, 33 Barb. 218; Young v. Highland, 9 Grattan, 16. It follows, therefore, that, in determining which party ought to begin, regard must be had, not so much to the form as to the substance of the case; and in that view it must be considered what is the substantial fact to be made out, and on which party it lies to make it out.

In the case before us the substantial fact to be ascertained by the jury was the amount of compensation which the city must pay to the property owners, to enable it to acquire the land sought to be appropriated. The assessment was not to be made upon a claim of the property owners, but the city -was required to have it made before it could obtain the land. The city, therefore, was required to move affirmatively in the matter, and to secure an “ inquiry and assessment” of compensation by a jury, or fail in the appropriation. Notwithstanding the city is substantially the plaintiff in the matter, if it would be entitled to a verdict for a nominal amount if neither party gave any evidence, the land-owner would undoubtedly be entitled to begin. But it is clear that the appropriation must fail, unless an actual and not a nominal assessment is made. The constitution guai’antees to the owner of the property an actual compensation ; and the statute authorizing the appropriation and providing for the compensation is framed so as to secure an actual and not a nominal assessment. The statute not only requires the jury to make an assessment of compensation, but it equally imposes upon them the duty of “ inquiry ” into the matter of compensation; for, in nearly every one of the numerous instances in which it speaks of the assessment, it speaks of “ the inquiry into and assessment of compensation,” as if no assessment was contemplated but such as should be the result of due inquiry by the jury. In view of the provisions of the constitution and of the statute, it is quite clear that the city could not appropriate the laud to the public use desired, without an assessment of compensation to the owners of the property, made upon due inquiry by the jury. In order, then, to secure a valid assessment, it was incumbent on the city to have the inquiry made upon proof as to the compensation to be assessed, otherwise the appropriation might fail for want of a valid assessment of compensation.

Since, then, the assessment of a substantial compensation was required, which might have failed without proof given to the jury, and as the appropriation could not be made without such assessment, the court might well be warranted in holding that the city ought to begin, for otherwise it might be defeated.

This view of the cáse renders it unnecessary to refer to cases in other states, in which it was held that the property owner was entitled to begin, for the case turns on provisions peculiar to our own constitutional and statutory law. It also becomes unnecessary to determine whether the question, as to which party must begin, is one within the discretionary power of the court, or is one of law, the decision of which may be reviewed on error. It is sufficient to say that, upon either view, no error intervened on this point in the present case.

Another error alleged is based on exceptions taken, on the part of the property owners, to the ruling of the court, on the trial to the jury, in sustaining objections of the city to questions propounded by them to a witness, in regard to the effect of the proposed grade of the street. But the record does not show what was expected to be proved by the witness. It does not, therefore, appear that the evidence offered was something material, the rejection of which would be prejudicial to the party excepting. The record, therefore, fails to show any error on this point to the prejudice of the plaintiffs in error. Gondolfo v. The State, 11 Ohio St. 114; Holister v. Reznor, 9 Ohio St. 6; Bolen v. The State, 26 Ohio St. 371.

Again, it is claimed that the court erred in permitting a certain paper to be given to the jury. On the trial to the jury, the city called a witness, who testified that he was a civil engineer, and “ that from the plat and description set out in the petition he had computed the number of square feet in each one of the lots described, which numbers he gave, and had noted the same on a plat similar to that filed by the city; and thereupon he was examined and cross-examined, and enumerated the measurement of each lot in the plat set forth in the petition, and compared the same with each lot upon the plat produced by him, and made his calculations of the square' feet in each lot of the plat in the petition, and compared the result with the quantities respectively noted on the plat produced by him, and they agreed with each other. ■ Whereupon the counsel for the city offered in evidence the said plat with the figure on it, and asked that the same be allowed to go to the jury, and to be taken out with them when they retired; to which the defendants, by their counsel, objected; but the court overruled the objection, and allowed the plat with the figures on it to be offered in evidence to the jury, and taken with them on their retirement; to which ruling the defendants then and there, by their counsel, excepted.”

There was no objection to the testimony of the witness; on the contrary, it is conceded to be competent and admissible. The exception goes only to the ruling of the court ■in permitting the paper, which was a copy of the plat of lands in controversy containing figures showing the quantity of ground, which the witness had sworn was contained in each of the several lots, to be given to the jury. The paper was not suffered to go to the jury as an exhibit or plat of the ground. A plat was already properly in the case. It was given to the jury, not as evidence in the case, but merely as a memorandum of the quantity contained in each of the several tracts, as sworn to by the witness. It was, therefore, a matter within the discretion of the court. In permitting the paper to be handed to the jury no injustice could be done to either party; nor could it prejudice the plaintiffs in error. It merely subserved the convenience of the jury in enabling them to accurately retain the testimony as to the several quantities of ground contained in the lots', which it would otherwise be difficult for them to remember. Tracy v. Card, 2 Ohio St. 431, 451. There was no error in this respect.

Judgment affirmed.


author: Wright, J.

text:
    Montgomery v. Swindler.
    1. The party holding the affirmative of the issue, as a general rule, ought to open and close the evidence and argument, and there being a number of issues, if the plaintiff holds the affirmative of any one, or if any evidence material to his case is required of him, he ought to begin. In determining the question, however, upon a complicated state of pleading, a lib- ■ eral discretion is allowed to the court trying the cause, and this discretion will not be reviewed, except upon a plain case of error.
    2. A party having asked a special charge, which was refused, and also a special finding, if such finding shows that the refusal to charge as asked could not have been prejudicial, such refusal is not ground of error.
    Error to District Court of Gallia county.

      Simeon Nash, for plaintiff in error:
    As to which party shall open and close, see Hackman v. Fernie, 3 Mees. & Wels. 505; Geach v. Ingall, 14 M. & W. 95; 7 Eng. L. & Eq. 578, 580; Huntington v. Conkey, 33 Barb. 218; Ins. Co. v. Paver, 16 Ohio, 330.
    D. B. Hebard, and S. A. Nash, for the defendant in error.
   Wright, J.

The action below was brought by Henry Swindler upon a writing obligatory, by which defendant agreed to pay to plaintiff or bearer $1,000 in 7-30 bonds of the United States, in sixty days from date. The agreement, not having been complied with, plaintiff claims to recover $1,000, with interest at the rate of 7 3-10 per cent, inasmuch as the bonds themselves bore that rate.

The answer denies that plaintiff has the right to recover 7 3-10 per cent., and insists that he can claim but legal interest.

The answer also sets up a counterclaim for goods sold and delivered in the sum of $400.

The reply says nothing about the interest question, but denies the offset, and says that the items set up as offset were applied in payment of other debts owing by defendant to plaintiff.

Upon this state of the pleadings, the defendant claimed the right to open and close, both with evidence and argument, and when plaintiff was’offered as a witness on his-own behalf, and asked the question, “ what was the consideration of the promissory note sued on ? ” defendant objected. In support of his position, defendant claimed that the consideration of the note was set forth in the answer as being $1,000,money loaned; this was not denied in the reply, and, therefore, defendant insisted that no evidence could be given, the fact standing admitted. The objection was overruled and exception taken.

But it will be noticed that the plaintiff had filed a reply to defendant’s offset, claiming that the items of that offset, had been applied in payment of other debts between the-parties, and therefore they could not be considered and allowed again. It was then proper for plaintiff to show that such application had, in point of fact, been made, and this would entitle him to begin. The court could not foresee whether he would offer evidence upon the precise point upon which he was entitled to the affirmative; but if an examination of the pleadings showed that right in him, the court was correct in its action. In a difficult, intricate state of pleading, the court must be allowed some degree of discretion.' In Lexington Ins. Co. v. Paver, 16 Ohio, 330, Hitchcock says the rule is, that the party having the affirmative of. the issue shall open and close, “ when, by the pleadings, it is apparent that no evidence is required from the plaintiff, the defendant ought to open; but, if any, no matter how slight, proof is required of the plaintiff, he must be allowed to go forward. In this case, however, there was not a single issue to be determined, but eleven separate and distinct issues, in some of which, at least, the plaintiff had the affirmative. Take, for instance, the tenth plea, which is that the boat was unseaworthy. This plea is traversed by the plaintiff below, by the affirmation that she was seaworthy. And the same is the fact in some of the other pleas. Looking at the whole ease, the court entertained the opinion that the plaintiff should open the case. We are not prepared to say there was anything wrong in this.” And also regard must be had to the substance rather than the form of the issue.

In determining a question of this kind, considerable latitude must be allowed to the court, and the remark of Mr. Nash, in his valuable work on pleading and practice, has weight, that the phrase of section 266 of the code, “ unless the eoui’t for.special reasons shall otherwise direct,” “ probably leaves the whole matter to the discretion of the judge at the trial.” 2 Nash Pl. & Pr. 972.

At least it is so far a matter of discretion, that it will require a plain and strong case to justify the interference of a court of error. The subject is discussed in the following authorities: 1 Arch. Pr. 385; Geach v. Ingall, 14 M. & W. 95; Ashby v. Bates, 15 M. & W. 589; Carter v. Jones, 1 Morchy & Rob. 281; Mercer v. Whall, 5 A. & G. 447; Huntington v. Conkey, 33 Barb. 218; Young v. Highland, 9 Gratt. 16; Hackmen v. Fernie, 3 M. & W. 505; Leet v. Ureshall Life Ins. Co., 7 E. L. & Eq. 578; Reichard v. Man. Life Ins. Co., 31 Mo. 518; Ilsley v. Wells, 7 Wis. 1; Fry v. Bennet, 28 N. Y. 324; Morris & Essex R. R. Co. v. Parker, 34 N. J. 479; Preston v. Walker, 26 Iowa, 205; Conn. River Co. v. Clapp, 1 Cush. 559; Marsh v. Pier, 4 Rawle, 273; Richards v. Nixon, 20 Penn. St. 19; The B. & O. R. R. Co. v. McWhinney, 36 Inch 436; Winnisimenet Co. v. Grueby, 111 Mass. 543; Minnesotta Valley R. R. Co. v. Doran, 17 Minn. 188; Chesley v. Chesley, 37 N. H. 229; Ayer v. Austin, 6 Pick. 225; Neff v. City of Cincinnati, 30 Ohio St. 215.

Defendant then offered evidence to prove his set-off, and that when the goods were obtained nothing was said between plaintiff' and himself as to the application of the value thereof to any particular claim, except in certain items, and that no application bf payments had been made with his consent, nor had there been any agreement to that effect. Upon the other hand, plaintiff offered to prove the averments of his replication, and the evidence, though objected to, was admitted.

There being testimony on both sides tending to prove the agreement as to the application of payments and the reverse, the court charged the jury that if they found such agreement existed, then the plaintiff had the right to make the application of payments as he did.

Defendant then asked the court to charge, if this application of payments was made without his consent, they must find for defendant, which was refused. And, upon request of defendant, the court charged the jury to find separately, whether or not there was an agreemént as to the application ; in response to which the jury found “ that there was an agreement or understanding between the parties that their running accounts should be applied one against the other.”

We think this finding shows that the defendant could not have been prejudiced by the refusal of the court to-charge that the application could not be made without his consent. Nor do we see why running accounts may not be applied in payment, if the parties agree that it may be-done.

"The judgment of the district court affirming that of the-common pleas is affirmed.


text:
    Combs v. Watson.
    1. Under section 17 of the “ act regulating the mode of administering assignments in trust for the benefit of creditors,” as amended February-12, 1863 (S. & S. 379), lands conveyed for the purpose of defrauding, creditors inure to the benefit of such creditors; and any one of them, -whether his claim be reduced to judgment or not, may bring an action to set aside such conveyance, and have the proceeds of the land applied to the payment of the creditors, as provided in said section.
    2. Under the limitation prescribed by section 15 of the code, an action to set aside such fraudulent conveyance is barred after the lapse of four-years from the discovery of the fraud.
    3. Where the petition in such action shows on its face that the conveyance was made more than four years before the action was brought, it must contain an averment that the fraud was not discovered until within that period; otherwise, the defendant may demur to the petition on the ground that it does not state facts sufficient to constitute a cause-of action.
    Error to the Superior Court of Cincinnati.
    The original action was brought in the Superior-Court of Cincinnati, November 12, 1872, to subject certain real estate, deeded to Emily Watson by Edward Grieve, September 25, 1865, to the payment of the creditors of Charles T. Watson, for the reason that he furnished the means to pay for the same, and caused the deed to be made to his wife, to hinder, delay, and defraud his creditors, and for which purpose she accepted the conveyance.

      The petition avers, that on November 1, 1860, Charles T. Watson, at Nashville, Tennessee, made his note to M. ‘■S. Combs, the plaintiff', for $750, payable eighteen months after date, with interest; that, a few days before the note became due, Watsou, being the owner of a house and lot in Nashville, without 'consideration, and with intent to defraud his creditors, conveyed the same to one Henderson, his brother-in-law, who afterward sold the property for a large sum of money, which he paid over to Watson; that Watson, September 25, 1865, purchased the premises in question for $4,000, of which he paid $3,000 in cash, and gave his three notes, secured by mortgage, to Grieve, the last •of which notes became due September 28,1868, all of which were duly paid by Watsou; that in June, 1872, the plaintiff obtained a judgment against Watson, on his note against him, for $1,275.50, which is still in full force, and wholly unpaid; that he has caused an execution to be levied on the real estate sought by this action to be subjected to the payment of the creditors of Watson, who is insolvent; and asks that the deed to the wife be declared void, and the lands subjected to the payment of Watson’s ■creditors.
    Mrs. Watson demurred to the petition, on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and rendered Judgment in her favor. This is assigned for error.

      Jacob Shroder, for plaintiff in error, claimed:
    1. That, inasmuch as the petition did not show that the fraud was discovered more than four years before the commencement of the action, the demurrer ought to have been overruled. Huston v. Craighead, 23 Ohio St. 199; Sturges v. Burton, 8 Ohio St. 220; Long v. Mulford, 17 Ohio St. 509; Thomas v. Westerman, 7 Met. (Mass.), 229.
    2. Under section 17 of the act passed April 6, 1859, as amended February 12, 1863 (S. & S. 397), regulating the mode of administering assignments in trust for the benefit of creditors, the cause of action of a judgment creditor accrues when he recovers his judgment.

      a. So much of said action as relates to the avoidance of fraudulent conveyances is but a modern transcript of the 13 Eliz. Ch. 5, which, on' its part, was but a declaration of a well-established rule of equity. In chancery none but a judgment creditor could have sustained a suit to set aside a fraudulent conveyance. Adam’s Equity (marginal), 147, 148; Andrews v. Durant, 18 N. Y. 500; Hastings v. Belknap, 1 Denio, 198; Colman v. Croker, 1 Vesey, Jr., 160; Ludlow v. Dutton, 1 Phil. Rep. 226 (8 Leg. Int. 130); 1 Monroe (Ky.), 106, 107, 232.

      b. This equity rule does not appear to have operated so grievously as to invoke a legislative remedy. In none of the cases decided by this’court has either the court or the-counsel complained of its supposed dilatory operation. Unless a creditor has a certain claim upori the property his action may lead to an unnecessary, and, perhaps, fruitless and oppessive interruption of the exercise of the debtor’s-rights. Wiggins v. Armstrong et al., 2 Johns. Ch. 144; Peyton v. Lamer, 42 Ga. 131, and 124, 530.

      c. There is no expression in said section which would warrant a departure from the rule of equity referred to, unless it be the phrase, “ at the suit of any creditor.” Now, as this section is a part of an act regulating the mode of administering assignments in trust for the benefit of creditors, and as the amendment to the original section addresses itself to merely more explicit and elaborate directions for administering the trust, it seems clear that the amendment is not intended to affect that portion of the section which relates only to the avoidance of fraudulent conveyances.
    Under said section, the only foundation of “ a court of competent jurisdiction (a court with equity powers), is to-declare that such a transfer had been made with that intent aforesaid.”
    The section does not contemplate any proceedings under it for the recovery of a judgment. It presumes the petitioning creditor to he a judgment creditor.

      Collins & Herron, for the defendant in error.
   Day, Chief Judge.

The court below sustained the demurrer to the petition on the ground that the action was barred by the statute of limitations. The action was for relief on the ground of fraud. It is, therefore, conceded that it comes within the limitation prescribed in the 15th section of the code, of four years after the cause of action accrued.

The plaintiff’s claim against C. T. Watson originated November 1, 1860. The deed to Emily Watson, his wife, which is claimed to be fraudulent, was made September, 5, 1865. Judgment was rendered on plaintiff’s claim in June, 1872. The petition in this case was filed November 12, 1872. It appears, then, that when this action was brought, more than four years had intervened after the date of the alleged fraudulent conveyance, but that a period less than that had elapsed from the rendition of the judgment on the plaintiff’s claim. Upon this state of facts, two questions are made:

1. Whether the cause of action accrued at the date of the alleged fraudulent conveyance to Emily Watson, or at the date of the judgment obtained against C. T. Watson.

2. If the cause of action accrued at the date of such conveyance, which appears by the petition to have been more than four years before the beginning of the suit, whether it was necessary for the plaintiff to aver in his petition that the discovery of the alleged fraud was not made until within the period fixed by the statute.

It may be coneeeded, that, without a statute authorizing it, no action can be maintained by a creditor to set aside a conveyance of real estate, made to defraud creditors, until he has reduced his claim to judgment. But in this state, such conveyances are controlled by statutory enactments.

By section 17 of the “ act regulating the mode of adminsttefing assignments in trust for the benefit of creditors,” passed Apri 16,1859 (S. & C. 713), it was provided that all conveyances, made with intent to defraud creditors, should inure to the equal benefit of all creditors, in proportion to the amount of their respective claims ; and the probate judge, after any such conveyance was declared by a court of competent jurisdiction to have been made with such intent, on the application of any creditor, was required to appoint an assignee to take possession of the property and administer it as in other cases of assignment. That section, however, did not enact that any creditor might maintain an action to have such conveyances adjudged to be fraudulent, though any creditor might have an assignee appointed, after such adjudication had been duly made.

But, on February 12, 1863, this section was amended. (S. & S. 397.) It provides that all conveyances made to “ defraud creditors shall be declared void at the suit of any creditor;” and that the probate judge, on application of any creditor, after the conveyance is adjudged to be void, may appoint an assignee to take possession of the property and administer it for the benefit of the creditors. The section, moreover, requires “ any creditor,” who institutes such suit, to make publication thereof, and authorizes “ all creditors,” who wish to join in prosecuting the suit, to come in and share proqeeds and expenses equally with the creditor who brings the suit.

The section was otherwise amended, it is true, but there was no occasion for the amendment as to the party who might bring suit to have such conveyances declared void,' unless it was to extend the right beyond that of judgment creditors, so as to include “ any” and “all” creditors; for judgment creditors had an undoubted right to bring such suits under the section as it stood without this amendment.

Moreover, this view is consistent with .the remaining amendments of the section, made at the same time, to permit “ all creditors,” who may desire to come in and share in the fortunes of the case, to the exclusion of those who do not. There is no doubt but that any creditor may come in under the notice published by the party bringing the suit, whether his claim is reduced to judgment or not; and there is no reason why a judgment should be required of the party bringing the suit more than there is of any other-party standing on an equal footing with him.

Nor can it be doubted but that any creditor, whether judgment creditor or not, may have an assignee appointed after the conveyance is declared void. It is quite apparent that it was equally the legislative intent that any creditor might bring the action to have the conveyance declared void. Such fraudulent conveyances are mere assignments for the equal benefit of all creditors, and the manifest purpose was to enable any creditor to institute the suit to enforce and secure the equal rights of all, without being subjected to the antecedent delay of getting a judgment, which might prove disastrous to the rights of all. The law, then, as it now stands, permits any creditor, whether he has a judgment on his claim or not, to institute and maintain -such actions.

Since, then, the obtaining of a judgment on the plaintiff’s claim against C. T. Watson was not essential to his right of action to have the alleged fraudulent conveyance .declared void, and since he was a creditor of the alleged fraudulent grantor at the date of the conveyance, it follows that his right to maintain such action existed from that time.

This view of the case makes it necessary for us to con•sider the second question made by the demurrer, as to whether it was necessary for the plaintiff’ to aver in his ■petition that the discovery of the alleged fraud was not made until within the period of four years before the action was brought.

The land was bought and paid for by C. T. Watson, and the conveyance was made to Emily Watson, for the alleged fraudulent purpose, more than four years before the beginning of the suit. These facts appear upon the face of the petition. The action was, therefore, barred by the statute of limitations, unless it is saved by the fact that the alleged fraud was not discovered by tbe plaintiff until within the-period fixed by tbe statute. The petition contains no such averment. The question is, whether it was necessary that the petition should contain that averment.

The 15th section of the code, which provides that “ actions for relief on the ground of fraud” shall be brought within four years “ after tbe cause of action shall have accrued,” declares that “the cause of action in such cases shall not be deemed to have accrued until the discovery of the fraud.”

Undoubtedly the plaintiff’s cause of action was complete, and, therefore, “accrued” at the time the fraudulent conveyance was made. The discovery of the fraud was not essential as a ground of action. A discovery of the fraud merely informs a party of an existing cause of action, and enables him to enforce it. The provision merely secures a party from the running of the statute as a limitation against an existing cause of action, until he discovers that ho has such cause of action. No matter when the cause of action accrued, for the purpose of applying the limitation of the statute, it “ shall not be deemed to have accrued until the discovery of the fraud.”

In construing a provision in the statute of limitations of New York, which is substantially like that of our own,. Grover, J., in delivering the opinion of the court of appeals, in Gates v. Andrews (37 N. Y. 657), says:

“ It is argued, by the counsel for the respondents, that the construction of the above clause is, that the action be deemed as accruing upon the discovery of the fraud by the-party aggrieved thereby, whether the right of action is then perfect or not. I think this construction erroneous. The provision is, not that the cause shall be deemed to accrue upon such discovery, but, to prevent the running of the statute, it shall not be deemed to have accrued before such discovery; thereby providing for a class of eases where the right of action was perfect, but became barred by the statute before the discovery of the facts upon which such right depended.”

It was not, then, necessary for the plaintiff to aver in his-petition a discovery of the fraud in order to show a perfect cause of action. Nor would it have been a good ground of demurrer, if the petition had merely failed to show when the cause of action accrued. Houston v. Craighead, 23 Ohio St. 198. But it affirmatively shows that the action accrued more than four years before the suit was brought. The statute was, therefore, available upon demurrer. Sturges v. Burton, 8 Ohio St. 215; Ang. on Lim. 317, § 294.

Inasmuch, then, as it appeared on the face of the petition that the fraud, upon which the aption was based, occurred more than four years before the'action was brought, to save it from the statutory bar, it was necessary to aver that the fraud was not discovered until a time within that period, in order to come within the saving of the statute, that “ the-cause of action in such cases shall not be deemed to have accrued until the discovery of the fraud.”

Having made a case showing that his cause of action, in fact, accrued more than four years before the suit was brought, if the plaintiff would avail himself of the light to claim that it shall not be deemed ” to have accrued until within that time, he must aver the fact which alone can bring him within the saving provision of the statute. This would be nothing more than a compliance with the ordinary rule in regard to the pleading of exceptions under the statute of limitations. Ang. on Lim. (6 ed.), 317, § 294.

The saving clause of the statute in question, is a substantial embodiment of the rule applied by courts of equity, in suits for relief on the ground of fraud. In such cases the statute was not regarded as running until the fraud was discovered. But it was necessary for the complainant to-allege that the fraud was unknown, till within the time allowed by the statute. Carr v. Hilton, 1 Curtis’ Rep. 390; Stearns v. Paige, 7 How. 829; Humbent v. Trinity Church, 7 Paige Ch. 195; Field v. Wilson, 6 Ben. Mon. 479.

It follows that the demurrer to the petition was properly sustained, aud that there was, therefore, no error in the rulings of the court below.

Judgment affirmed.

"Wright, <L, did not sit in the case.


text:
    Chinn v. Trustees, etc.
    1. The limitations of the code of civil procedure, as to the time of commencing civil actions, are applicable, as a bar, only to suits comprehended within the civil action of the code.
    2. The civil action of the code is a substitute for all such judicial proceedings as were previously known, either as actions at law or suits in equity, and does not embrace proceedings in mandamus.
    3. There is, in this state, no statutory limitation as to the time within which a writ of mandamus may be obtained.

      4. Nevertheless, where the relator has, for an unreasonable time slept upon. his rights, the court may, in the exercise of a sound discretion, upon the hearing of the case, refuse to issue the writ.

      ,5. In determining what will constitute such unreasonable delay as to justify a refusal of the writ, regard may properly be had to circumstances which justify such delay, to the character of the case, and the nature of the relief demanded, and to the question whether the rights of the defendant, or of other persons, have been prejudiced by such delay.
    Error to the District Court of Lawrence county.

      W. H. Enoch, for plaintiff.

      Neal & Cherrington, for defendants.
   Scott, J.

The plaintiff in error applied to the District Court of Lawrence county, for a writ of mandamus, commanding the defendants in error to execute and deliver to him a township bond of said township of Fayette, for one hundred dollars, in compliance with the requirements of the act of April 16, 1867, “to authorize and require the payment of bounties to veteran volunteers,” and the acts amendatory thereof.

The facts stated in his relation, were such as to bring his case, prima facie at least, within the purview of said statute, and to entitle him to such bond. He avers in his relation that since the year 1867, he has often requested the trustees of said .township, and their successors in office, including the present board of trustees, to draw, perfect, and deliver to him such bond, which they have refused, and still refuse to do.

His application was made to the district court, August 9, 1873. The defendants answered, and for their first defense alleged “ that the cause of action on which plaintiff’s application is based, accrued to him against the defendants, more than six years prior to the commencement of this suit, by the said plaintiff, and so, they say that said action is barred by the statute of limitations.” To this defense the relator demurred. The court overruled his demurrer, and thereupon dismissed the case at his costs. Eor alleged error in this action of the court below, the plaintiff here prosecutes his petition in error.

The code of civil procedure limits the time within which an action can be brought “ upon a liability created by statute, other than a forfeiture or penalty,” to six years, (Sec. 14.) This provision is found in title 2, of the code, the object of which is to define and prescribe “the time of commencing civil actions.” The civil action of the code is a substitute for all such judicial proceedings as, prior thereto, were known, either as actions at law, or suits in equity. (See. 3.) By section 8, the limitations of this title are expressly confined to civil actions. But proceedings in mandamus were never regarded either as an action at law, or a suit in equity, and are not therefore a civil action within the meaning of the code. Mandamus is an extraordinary or supplementary remedy, which can not be resorted to if the party has any other adequate, specific remedy. The code provides for and regulates this remedy, but does not recognize it as a civil action. It declares that the writ of mandamus may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the-law. (Sec. 570.) And in section 577, it provides that: “No other pleading or written allegation is allowed than the writ and answer.”

These are the pleadings in the case, and have the same-effect, and are to be construed, and may be amended in the the same manner as pleadings in a civil action; and the issues thereby joined must be tried and the further proceedings thereon had in the same manner as in a civil action.” This language clearly implies that mandamus is not comprehended within the civil action of the code, to which alone the limitations of title 2 are applicable as an absolute bar.

In holding otherwise, we think, the court below erred, and its judgment must, therefore, be reversed.

We do not, however, mean to intimate, that because there is no statutory limitation of the time within which a writ of mandamus may be obtained in this state, a party may delay his application therefor at pleasure, without detriment to his rights. Where the relator has slept upon his rights for an unreasonable time, and especially if the delay has been prejudicial to the defendant, or to the rights of other persons, the court, in the exercise of a sound discretion, may well refuse the writ. In a case in New York, where the relator sought, by mandamus, to have judicial proceedings set aside, the court refused the writ, because of an acquiescence in the proceedings for one year. 2 Wend. 264. In another case, it was held that mandamus might be brought within the time fixed for the limitation of other similar or analogous remedies. The People v. The Supervisors of Westchester, 12 Barb. 446. The justice and equity of this rule would, in many cases, be questionable. Moses on Mandamus, 190. What laches, in the assertion of a clear legal right, would be sufficient to justify a refusal of a remedy by mandamus, must depend, in a great measure, on the character and circumstances of the particular case.

These circumstances may often be frilly developed only on the trial of the case, as the statute permits no reply to the answer of the defendant. Eor the purposes of the demurrer, in this case, the relator admits a delay of six years. But for all other purposes, such delay is to be regarded as denied. How long, and under what circumstances, the relator has slept upon his rights, and what prejudice, if any, has resulted therefrom to the defendants, or to other persons, are facts to be ascertained upon the trial of the case, and considered by the court, in determining whether such laches is disclosed, as to justify a denial of the remedy sought.

The answer of defendants contains a second defense, to which plaintiff in error demurred, and his demurrer was sustained by the court. Of this action, he, of course, does not complain. But counsel for defendants suggest that the court erred in sustaining this demurrer, and that the facts stated in this defense justify the action of the court in dismissing the relator’s case. It may be sufficient to say that we think the facts relied on do not constitute a legal bar to the relator’s claim.

The judgment of the court below will be reversed, the demurrer of plaintiff to the first defense' of the defendants he sustained, and the case remanded to the district court for trial upon its merits.

Judgment accordingly.