author: Williams, C. J.

text:
    McGaughey, Adm’r, etc. v. Jacoby et al.

      Indebtedness of executor to testator regarded as assets — Chargeable as money in hands of executor — Executor’s sureties liable for distribution of same — Sureties not discharged if procured by fraud, when.

    1. The indebtedness of an executor to his testator is assets with which he is chargeable, at its maturity, as so much money in his hands; and the sureties on his bond are liable for his failure to administer and distribute the same according to law and the will, although he was insolvent at the time of his appointment, and continued to be so until the settlement of his final account.
    2. Ths sureties will not be discharged from such liability by fraud of the executor in procuring their execution of the bond, where the beneficiaries of the estate, in whose interest the liability is sought to be enforced, are themselves innocent of the fraud.
    (Decided April 28, 1896.)
    Error to the Circuit Court of Stark county.
    The plaintiff in error . commenced his action against the defendants in error, and one M. J. Russell, in the court of common pleas of Stark county, by the filing of the following petition;
    “The plaintiff avers that about 1880, one James Jacoby died in said county of Stark, leaving a last will and testament which was thereafter probated and admitted to record in the probate court of said county. By the terms of his will he appointed the defendant, Josiah Jacoby, executor thereof, and said Josiah Jacoby was duly qualified as such executor by said probate court, and on Jan. 4,1881, executed an executor’s bond with the other defendants, T. G. Loomis, N. Harris and M. J. Russell, as sureties thereon, whereby the said defendants became bound to the state of Ohio in the sum of fifteen thousand dollars in ease default should be made in' the conditions of said bond. The conditions of said bond were, that whereas letters testamentary on the estate of James Jacoby, deceased, were granted said Josiah Jacoby, by said probate court on January 4, 1881 — now if said Josiah Jacoby as such executor, first — should within three months make and return to said court a true inventory of all moneys, goods, chattels, rights and credits of said testator, which are by law to be administered, and which should come to his possession or knowledge, and also if required bjr said court, return an inventory of the real estate of said deceased; second' — Should administer according to law and the will of said testator, all his goods, rights, and credits and the proceeds of all his real estate that might be sold for the payment of his debts or legacies, which should at any time come to the possession of said executor, or into the possession of any other person for him; and, third — Should render upon oath a just and true account of his administration within eighteen months and at any other time that might be required by the said court or the law, and failing so to do, for thirty days after he should be notified by the probate judge of the expiration of the time, he should receive no allowance for services unless the court should enter upon its journal that such delay was reasonable and necessary; then, but not otherwise, said obligation should be void. A certified copy of said bond is hereto attached and is filed herewith. The said, bond was signed by the defendant Loomis as follows: “T. G. Loomis;” by the defendant Harris, as follows: “N. Harris,” and it was signed by the defendant Russell as follows: “M. J. Russell.” And thereupon said Josiah Jacoby entered upon the trusts of his administration and continued to act as such executor until January 30, 1891, when he resigned and his resignation was accepted by the probate court. On January 31, 1891, said probate court appointed R. W. McGaughey as administrator de bonis non, with the will annexed, of the estate of-said James Jacoby, deceased, and plaintiff forthwith qualified, and is still acting as such administrator. Said executor received assets of said estate to a large amount from time to time, and from time to time filed in said court accounts or reports of his administration upon said estate, and on January 30, 1891, he filed therein a final report or account of his administration, which account came on for hearing before said court on July 15, 1891, and it was heard and settled by said court, and the court found that there was then in his hands of said estate the sum of $5,088.53, which he was ordered by said court to pay to the plaintiff. Thereupon, on the same day, plaintiff demanded of Josiah Jacoby that he pay plaintiff the sum so found due from said executor by said court; but said Josiah Jacoby refused to pay, and has not paid to the plaintiff the sum so ordered to be paid by him, nor any part thereof; wherefore an action has accrued in favor of the plaintiff against the defendants under the terms of said bond, and plaintiff prays judgment against said defendants for the sum of $5,088.58, with interest from July 15, 1891, and costs of suit.” The following is a copy of the executor’s bond:
    “Know all men by these presents: That we Josiah Jacoby, T. G. Loomis, N. Harris and M. J. Russell, are held and firmly bound to pay the state of Ohio the full sum of fifteen thousand dollars, if default be made in the condition following:
    The condition hereof is such, that whereas letters testamentary on the estate of James Jacoby, deceased, were granted the said Josiah Jacoby by the probat,e court of Stark county, state of Ohio, on the 4th day of January, A. D. 1881; now if the said Josiah Jacoby, as executor of-the said James Jacoby, deceased; first — shall make and return to said court on oath, within three months, a true inventory of all the moneys, goods, chattels, rights and credits of said testator, which are by law to be administered, and which shall come to his possession or knowledge; and also, if required by said court, an inventory of the real estate of the said deceased; secondly — Shall administer, according to law, and to the will of the said testator, all his goods, chattels, rights and credits and the proceeds of all his real estate that may be sold for the payment of his debts or legacies which shall at any time come to the possession of the said executor or to the possession of any other person for him; and thirdly- — Shall render upon oath a just and true account of his administration within eighteen months, and at any other times when required by said court or the law and failing so to do for thirty days after he shall have been notified of the expiration of the time by probate judge he shall receive no allowance for services unless the said court shall enter upon its journal that such delay was necessary and reasonable.
    Then, not otherwise, shall this obligation be null and void.
    Signed and sealed by us at Canton this 4th day of January A. D. 1881.
    Piled and recorded January 4, 1881.
    Josiah Jacoby (Seal).
    . T. G. Loomis (Seal).
    N. Harris (Seal).
    M. J. Russell (Seal).
    Attest: — A. W. Hildebrand, P. J.”

      The defendants Jacoby and Russell filed no answer, but their co-defendants Loomis and Harris answered jointly as follows:
    “That the indebtedness sued upon herein consists of promissory notes made by the defendant Josiah Jacoby, to his father, James Jacoby, in his lifetime, and held by said James Jacoby at his decease. That at the time, and for a long time prior to the decease of the said James Jacoby, the said Josiah Jacoby was, ever since has continued to be, and still is utterly and wholly insolvent, and the said notes which the said James Jacoby held against him were utterly worthless and uncollectable, and for a long time before and at the time of the death of said James Jacoby said notes were and still are wholly and entirely worthless. These defendants further answering say that after said Josiah Jacoby was appointed executor of the last will and testament of the said James Jacoby, he, the said Josiah Jacoby, in order to induce these defendants to sign said bond falsely and fraudulently represented to them that there were no assets belonging- to said estate to be administered, and that no liability would be incurred by said defendants in signing said bond. That all he, the said Josiah Jacoby, would be called upon to do as such executor would be to collect some rents due and owing to his, said Josiah Jacoby’s mothei-, and pay the same over to her. That no personal property was left by said James Jacoby, and that the said James Jacoby would only have to collect the rents of the real estate and account for the same. The said Josiah Jacoby, for the fraudulent purpose aforesaid, falsely and fraudulently concealed from said defendants that he was indebted to the estate of James Jacoby in any sum or amount whatever, or that said estate held against him any notes or claims of any description whatever.
    The said Josiah Jacoby further falsely represented to these defendants to induce them to go on said bond, that their co-bondsman, M. J. Russell, was fully responsible for the amount of said bond. These defendants say that they then resided and still reside, in Medina county, Ohio, that they believed the statements made by the said Josiah Jacoby, as aforesaid, were true; that they had no personal knowledge of the same or any part thereof, and relied wholly upon the statements of said Josiah Jacoby, and relying upon said statements to be true, they signed the bond a copy of which is set forth in said plaintiff’s petition, and they would not have signed it had not the said Josiah Jacoby made the representations aforesaid, and had he not concealed from them the fact that he owed said estate the promissory notes herein before referred to.
    These answering defendants further say that each and all of said statements were false at the time the same were made, and known to the said Josiah Jacob}'' to be false, and were made with the fraudulent intent and purpose to induce said defendants to sign said bond as aforesaid, and the said fraudulent concealment of the said Josiah Jacoby from these defendants of the fact of his indebtedness to the said James Jacoby’s estate upon the promissory notes aforesaid, also induced these answering defendants to sign said bond, and all of the false statements and concealments aforesaid were known to the said Josiah Jacoby to be false at the time he made the same. These defendants further say that no assets which really came into the hands of the said Josiah Jacoby as executor as aforesaid, have been unaccounted for, butthat he has accounted andpaidover every dollar received by him as such executor, and that the assets now claimed to be in his possession and for which this suit is brought, consist wholly of the worthless notes of said Josiah Jacoby, as aforesaid. Defendants say that if they are compelled to pay said amount, said estate will wrongfully receive the proceeds of said worthless notes, which otherwise could not have been collected, and that great wrong and injury will result to these de-. fendants. They further say that both Josiah Jacoby and M. J. Russell, at all of said times, have been and still are, insolvent, which the said Josiah Jacoby knew at the time he made said fraudulent statement as to said M. J. Russell’ responsibilities. These defendants say there are no debts or liabilities against said estate of James Jacoby, deceased. Defendants say that in equity and good conscience, plaintiff ought not to recover in this action against them or either of them. These defendants therefore pray that said bond so signed by them as aforesaid may be vacated, set aside and held for naught, and that these defendants, and each of them may be forever released from all liability thereunder, and that said plaintiff’s petition against them may be dismissed at costs of said plaintiff, and that they may have such other and further relief in the promises as may be just and equitable. ”
    To that answer the plaintiff filed a general demurrer, which was overruled; and the court being of the opinion that upon the facts alleged in the answer, Loomis and Harris were not liable on the executor’s bond, rendered judgment in their favor, which judgment was affirmed by the circuit court; and the controversy here is confined to 'the sufficiency of the defense stated in the answer.

      B. W. McOaughey and Day, Lynch & Day, fo plaintiff in error.
    It will be seen at a glance that a very important question is raised, namely, whether the debts of the executor to his decedent and his decedent’s estate, are in all cases, assets in his hands, and to be accounted for as money. We contend that by force of the statute, such debts are assets in all cases, and that the question of the solvency and ability to pay his debts, in no wise affects the question.
    In Ohio, it was held at an early date that such appointment did not extinguish the debt but on the contrary, converted the same into an asset in the hands of the executor, with which he was chargeable. Bigelow v. Bigelow, 4 Ohio 138; Hall v. Pratt, 5 O., 72; Leland Felton, 1 Allen, 531; Winship v. Bass, 12 Mass., 199.
    . After the above decisions in Ohio, section 6069 of the statute was enacted, which provides distinctly that such debt is not discharged or converted into a bequest by naming the debtor as executor; and in addition provides, that such claims shall be included in the inventory. Tracy v. Card, 2 O. S., 431, 445; Raab’s Estate, 16 O. S., 273; Collard v. Donaldson, 17 O, 264; vol 6, Circuit Court Decisions, p. 49, Raff’s Guide, p. 71; 12 Maás., 199.
    It will doubtless be claimed the insolvency of the executor distinguishes this case from the above. No case, we are confident, can be found where, under a statute like ours, insolvency of the principal was held to be a good defense for his sureties.

      It may be said that it will be a hardship for these parties to pay the debt of an insolvent person; that there was no consideration for their becoming sureties, etc. The. sureties were presumed to know the law upon this point when they signed the bond.
    Where the debtor becomes executor, there is no longer any right of action upon his debt; it becomes merged into the other collected assets of the estate, and we know of no provision of our statue by which his solvency or insolvency may be determined.
    We contend that the judgment of the probate court was and is final, and cannot be attacked collaterally in this proceeding. It is an adjudication of the question which determines the amount due and is binding on all parties. The origin or nature of that indebtedness is now immaterial. Braiden v. Mercer, 44 Ohio St., 339; Slagle v. Entrekin, 44 Ohio St., 637.
    It is not alleged that the beneficiaries under the will, (whoever they may be) were parties to the alleged fraud. This is not therefore an exceptional case, coming under the rule in the 41 Ohio St., 588, but is to be controlled by the rule in Braiden v. Mercer.

    No case can be found, we believe, in which a party for whose benefit a contract has been made, is prevented from recovering on it against a surety, by reason of the false statements of the principal to his surety. There must be something to connect the beneficiary with the fraud. 26 Ohio St., 385; 33 Ohio St., 19-283; 58 N. Y., 315; 66 N. Y., 326; 80 Ill., 233; 89 Ill., 237; 102 Pa. St., 434; 2d Ed. Brandt on Suretyship, vol. 2, see., 406.

      George W. Lewis and Baldwin da Shields, for defendants in error.
    We do not claim that the correctness of the judgment of the probate court of Stark county in its finding of the amount due from Josiah Jacoby, Exr., to the estate of his decedent, can be reviewed in this action. We admit that if the defenses set up in the amended answer of the sureties, Loomis and Harris, do not prevail, said sureties will be compelled to pay the said amount of $5,088.53, and interest, as found by the probate court. That question, to wit: the amount of the indebtedness of Josiah Jacoby, Exr. to his estate is all the probate court of Stark county passed upon; and it will not be claimed by the plaintiff in error that the defenses herein set' up were considered in that court, neither could they be, for the sureties were not parties thereunto and had no opportunity to set up the same; and we have very grave doubts, as to the jurisdiction of the probate court to determine the questions raised by the amended answer in this action.
    Instead of asking this court to review the judgement of the probate court, we ask by the admitted fraud practiced by the said Josiah Jacoby to procure them to sign his bond, as set up in the amended answer, the sureties be relieved from all legal liability under said bond which is the basis of the suit.
    The plaintiff’s claim that our only defense in this action is the insolvency of Josiah Jacoby, the executor, is not tenable, because we do not claim that his mere insolvency disconnected with his fraudulent representations in procuring the signatures upon the bond, would release his bondsmen from liability. The fraudulent representations of Josiah Jacoby to induce the sureties upon this bond to sign the same, and their, belief in the truth of these representations, and the fact that the representations were false, and known to Josiah Jacoby at the time to be false, is the basis upon which we claim to be discharged, which fraudulent representations,- if they do not take this case out of the general rule to which we assent, would have the tendency and effect to create an estate by fraud, which could have no existence whatever without it. 58 Vt., 706; Campbell v. Johnson, 41 Ohio St., 588; Ordinary v. Kershaw, 14 N. J. Eq., 527; Brown v. Harshman, Exr's. 9 C. C. Rep., 1; 107 N. Y., 624; McCoy Admr. v. Allen et al., 9 C. C. Rep., 607; Perkins et al., v. Scott et al., 9 C. C. Rep 207.
    While as a general rule the debt of an insolvent executor or administrator, to the estate must be regarded as assets of the estate in his hands to be accounted for, yet such legal rule will never be allowed to go as far as to work wrong and injustice. Kinney v. Ensign, 18 Pick., 232.
   Williams, C. J.

The rule of the common law, that the appointment and qualification of a debtor as the executor of his creditor ’ s estate, operated as a legacy of the debt and discharged the executor from its payment, never obtained in this state. On the contrary, it has been' the established law from an early period, that the debt becomes assets with which the executor is chargeable, and at its maturity is treated as paid, and thereafter as so much money in his hands, for the faithful administration and distribution of which, in accordance with the law and the will, the sureties on the executor’s bond, are responsible. Tracy v. Card, 2 Ohio St., 431; Hall v. Pratt, 5 Ohio, 73; Bigelow v. Bigelow, 4 Ohio, 138. That rule was carried into the legislation of the state as early as the administration act of March 2, 1840, and has since continued to be a statutory regulation governing the accountability of executors, and the liability of their sureties. The provision is now embraced in section 6069 of the Revised Statutes, which declares, as did section 66 of the act of 1810, that: “The naming of any person executor, in a will, shall not operate as a discharge or bequest of any just claim which the testator had against such executor; but such claim shall be included among the credits and effects of the deceased in the inventory and the executor shall be liable for the same as for so much money in his hands at the time such debt or demand becomes due; and he shall apply and distribute the same in payment of debts and legacies and among the next of kin as part of the personal estate of the deceased. ’ ’

The indebtedness of the executor to the testator being regarded by the law as so much money in his hands, and assets in' that form, with which he is chargeable in the administration of his trust, its proper application and distribution by him to the parties entitled thereto, is a duty coming within the conditions of the bond which the executor is required to give, and for the performance of which the sureties undertake to be responsible; so that, their liability for his failure to make faithful administration of that fund is within the express terms of their obligation. That this is so as a general rule is not disputed; but it is claimed an exception exists, or should be made, where the executor is insolvent at the time of his appointment and continues to be so until the final settlement of the estate, for the reason, as it is said, that it would be a hardship on the sureties in such a case, to hold them for the executors individual debt to the testator, when they contemplated and intended no further responsibility by their obligation of suretyship than that for the performance of his duties in the administration of the actual assets which are within his control; and in that respect, his indebtedness to the testator is, or should be, on no different footing from that of other debtors. This claim was made in Tracy v. Card, supra, where the court, untrammelled by any legislation on the subject, and free to adopt a rule which would seem most salutary, declined to sanction the exception contended for; and it has never found its way into our legislation. The statute declares, in explicit terms, that in the administration of his trust the executor shall be liable for any indebtedness of his to the testator, “as for so much money in his hands” at the time it becomes due, and “shall apply and distribute the same in the payment of debts and legacies, and among the next of kin as part of the personal estate of the deceased. ” The language includes all executors indebted to their testator, imposes the same duties upon all alike, and applies the same rule to all without distinction between those that are solvent and those that are insolvent, or on account of any circumstance or' condition whatever . If such distinction, or any distinction had been intended, it could easily have been made, and would have readily occurred to the legislative body, especially in view of the previous decisionsof the court establishing the same rule declared by the -the statute. The failure to make the distinction suggested, would therefore seem to have been intentional; but if it were not, the courts cannot supply the omission, without a manifest encroachment upon the province of the legislative body. Sureties on the bonds of executors, like other sureties, are presumed to contract in view of the law in force at the time controlling their liability, and it is not a hardship to hold them to the obligation which the law attaches to their undertaking whpn it is entered into, in any other sense than that a security debt is a hard debt to pay. The penalty of the bond is fixed bjr the court g’ranting testamentary letters, with reference to the probable amount of the estate to be administered, and the securities are advised thereby of the extent of their liability, and of its nature 'by -the conditions of the bond; and the rule declaring their liability for the executor’s indebtedness to the testator, as money, has been so long and uniformly adhered to, that its enforcement now cannot with propriety be characterized as a hardship or injustice.

It may well be doubted whether the statute, with a provision like that sought to be engrafted upon it, would be as just and wholesome in its operation, as it now is without it. As the executor cannot sue himself, and all resort to legal process and proceedings for the eollection'of the debt owing by him to the testator is cut off by his appointment, in every case where his insolvency, total or partial, should be asserted for the relief of his sureties, an investigation into his financial condition during the continuance of his trust would become necessary, in which he would occupy the conflicting relations of the representative of the estate, charged with the duty of diligence in its behalf, and of a debtor, whose interest it would be to escape the payment, of his debt, and save his sureties therefrom. Such an inquiry, with the difficulties that must necessarily be encountered, would at best be an unsatisfactory and inadequate substitute for the remedies ordinarily afforded by the law for the enforcement of the collection debts. At all events, the uniformity and certainty of the rule as we find it established, has commendedit to both the legislature and the courts as the sounder and safer one, and, as said by Thurman, J., in Tracy v. Card, supra, if it had proven otherwise, “it would not have stood unquestioned so long.”

Nor is the rule qualified or affected by section 6181, of the Revised Statutes, which provides that; “No executor or administrator shall be accountable for any debts inventoried as due to the deceased, if it shall appear to the court that they remain uncollected without his fault.” Debts due from the executor to the testator, are, by force of section 6069, transmuted into money in his hands, and being so, in the language of the court in Hall v. Pratt, supra, “no act of the parties can return them back to an obligation;” so that, they cannot be classed with uncollectible nor uncollected debts, within the purview of section 6181.

The principal contention of the defendants in error is, that they did not become liable on the bond of Jacoby’s executor, or were discharg-ed from liability thereon, on account of his fraud in obtaining their signatures to it, as alleged in the answer; and the case of Campbell v. Johnson, 41 Ohio St., 588, is relied on in support of this contention. In that case, the widow, after becoming the sole owner of all the estate left by the deceased husband, by assignments from the heirs, and knowing that in the condition of the estate no administration was necessary, fraudulently conspired with her son, who was indebted to the estate and wholly insolvent, to procure his appointment as administrator, and by false representations and concealments induce the sureties who did so to go upon his bond, and thus make them responsible for the son’s debt, for the sole benefit of the widow. To carry out this fraud, to which the widow was a party, the son whose appointment was so procured, made his settlement, charging himself with the amount of his debt to his intestate, and nothing else, which amount was found due from him to the estate and ordered by the court to be distributed. The widow thereupon brought suit for the same on the administration bond, and the sui-eties set up the fraud as a defense; that defense was demurred to, and the demurrer was sustained by the lower courts. In reversing the judgment below the court said: “In this state it has been settled that the debt of an administrator is not released by his appointment and acceptance of the trust, but that his debt becomes assets in his hands and covered by the administration bond. Tracy v. Card, 2 Ohio St., 431. But the case presented by the first.defense of Campbell’s answer and the demurrer thereto, is not controlled by this rule. The allegations of this defense, which are admitted to be true by the demurrer, show a cunningly devised scheme, amounting to a fraud on the part of the sole beneficiary of the estate and the administrator to make Campbell responsible for a worthless claim. This scheme cannot be made effective by the courts, and the demurrer should have been overruled.” The principle upon which that decision rests is the familiar one, that a party cannot be allowed to profit by his own fraud, or use the courts to aid him in its consummation. That principle is lacking in this case. The action by the plaintiff below, the administrator de bonis non, with the will annexed, was prosecuted for the benefit of all persons interested in the estate, and it becomes his duty to pay out and distribute all the estate recovered by him to the persons entitled thereto, none of whom are charged in the answer with participation in, or knowledge of the fraud perpetrated upon the defendants. That fraud, as alleged in the answer, consisted wholly of false representations and concealments made by Josiah Jacoby as an individual, before he qualified as executor of the estate, with which, so far as is shown by the answer, the beneficiaries of the estate were in no wise concerned, and of which they were all entirely innocent. It is argued, however, that as Jacoby’s fraud operated to create the estate sought to be recovered, the beneficiaries, by claiming the estate, must be held to -have adopted the fraud, and to be bound by it; and it is asserted as an elementary proposition, that whoever claims the benefit of a fraudulent transaction is estopped from denying .participation therein. It will be found, we think, that the application of that principle is limited generally to cases where there was existing some relation of agency of the person guilty of the fraudulent conduct to the party seeking to enforce the transaction. This is recognized in Bank v. Lucas, 26 Ohio St., 385, where the payee of a note on which there were two sureties, agreed with the principal, at its maturity, to give further time for its payment, if he would procure a new surety named, in the place of one of those already on the note. The principal accordingly took the note to the proposed new surety and procured his signature to it by fraud, and returned it to the payee, who was without knowledge of the fraud. It was held, in an action by the payee, on the note, that the principal in procuring the name of the new surety, did not act as the agent of the payee, and that the new surety was bound, notwithstanding the fraud of the principal. Welch, -C. J., in the opinion says, that true, the signature of Boteler, the new surety, “was obtained by fraudulently representing that Lucas (one of the original sureties), consented to the arrangement; but this was the fraud of Calhoun (the principal), and the bank, (the payee), was in no sense a party to it. Calhoun, in procuring the signature of Boteler, did not act as the agent of the bank, as counsel seem to suppose. He acted entirely on his own behalf and for his own interest, and the cashier of the bank merely consented that he might do so. ’ ’ For reasons not less forcible, is the proposition advanced by counsel for the defendants in error, inapplicable to a case like the one before us. Bond with sufficient sureties, is exacted by law of an executor, in order to protect the creditors and beneficiaries of the estate in the interests to which they are respectively entitled, and secure its payment and distribution to them at the proper time. iffie court of probate of the proper county is the sole authority clothed with the power and charged with the duty of taking and approving the bond. In discharging that duty the court is concerned only with the due form and execution of the bond in a sum sufficiently large to cover the estate with which the executor may become chargeable, and the pecuniary responsibility of the sureties offered for that amount. It is not the duty of the court to inquire into the representations made to the bondsmen to induce them to become such, nor is that expected to be done. But when the bond, in due form, with qualified sureties, is executed and approved, the letters are issued and the executor is let into possession of the estate. Neither the court, nor the executor named in the will, can be said, in any proper sense, to be the agent of the beneficiaries, or acting with their consent. They are often infants, sometimes-persons non compos, or under other disability renderin them incapable of authorizing or consenting to any act of the court or éxecutor, and if not so, they have no potential voice in regard to the bond or sureties thereon. In making and approving the bond the court is simply in the performance of an official duty, and the executor in procuring the sureties, acts in his own behalf and interest, and not as a representative of the beneficiaries. Until the bond is executed and approved, his representative character does not begin, and even after that, he is not an agent authorized to bind the beneficiaries, but must discharge his duties as required by law and the will. It is the bond executed by the sureties which enables the executor to come in possession of the estate, and if he should then squander it, and the sureties be held released from its obligation by his false representations in procuring them to enter into it, the purpose of the bond would be' defeated. The loss suffered by the beneficiaries would be the result of the wrong which the act of the sureties, in becoming such, enabled the executor to commit, and the greater his fraud the more certain the escape of his sureties, however innocent the beneficiaries might be. The sureties trust the executor, the beneficiaries do not; and the latter, when innocent themselves of any fraud cannot, we think, on any just principle, be affected by that of the executor.

Judgment reversed and cause remanded.


source: Caselaw Access Project

author: By the Court:

license: Public Domain

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

      Assessment by municipality — Abutting property assessed for costs of sewer — Those who successfully resist assessments cannot use sewer unless paying towardits construction.

    Where by municipal authority, a system oí sewers is constructed with a view to assessing a portion of the costs thereof equally upon the abutting property, and a portion of the assessments are paid and a portion successfully resisted, a rule requiring as a condition to the use of the sewer that those who so resisted shall pay a. sum equal to that paid by others toward its construction is not unreasonable.
    [Decided April 28, 1896.]
    Error to the Court of Common Pleas of Hamilton county.
    The plaintiffs in error constitute the board of administration of the city of Cincinnati.
    In the court of common pleas a peremptory writ of mandamus was awarded on the petition of Cooper against the board, commanding them to permit him to tap the sewer in Ashland street, upon which his residence fronts, on payment by him of the usual license fee of five dollars, but without payment of any portion of the cost of constructing the sewer. The material facts are that the city constructed a system of sewers on Walnut Hills, including the Ashland street sewer, at a cost of about $142,000. It made assessments on abutting property to the extent of two dollars per front foot, which amounted to about half the cost of construction. Some of the assessments were paid, but a portion of the property owners, including him who was then the owner of Cooper’s property, resisted the assessment upon the ground of fraud by the contractor, and their defense finally prevailed. In consequence thereof the city was adjudged to pay the balance of the contract price. When Cooper applied to the board for a permit to tap the sewer, it refused to grant it except upon compliance by him with the following rule, which it had previously adopted :
    “Wherever public sewers have been constructed, and the cost thereof has been wholly or partly paid out of the funds of the city, and the owner of any abutting property makes application for permit to tap such sewer, no permit shall be issued to any such abutting owner unless he shall have paid the assessment or assessments levied againsthis said property for the cost of said sewer ; or if for any reason said assessments have not been paid, or have been released or no assessment has been levied, no permit shall be granted unless such person shall first pay into the city treasury, for the purpose of repaying the city the amount paid out or to be paid out by said city on account of said sewers a sum equal to an amount per front foot to be determined by taking the total cost of constructing the main and lateral sewers and drains into which he desires to tap, and divide the gross amount by the number of front feet abutting upon said sewers: Provided, however, that the amount so to be paid shall in no case exceed the sum of two dollars per front foot of the property abutting.

      Frederick Uertenstein, Corporation Counsel, and Wm. II. Whittaker for plaintiffs in error.

      O. J. McDiarmid for defendant in error.
   By the Court:

The rule adopted by the board of administration is not inconsistent with the judgment that the assessments for the construction of the sewer in question were void. The assessments were asserted against the owners of all abuttingproperty, whether vacant or improved. They were asserted without regard to the use of the sewer. The rule in question prescribes conditions upon which connections may be made for the actual use of the sewer.

The board is authorized by section 2402, Revised Statutes, to prescribe rules and regulations for the tapping of sewers. Certainly, it may not prescribe an unreasonable rule. In determining whether this rule is reasonable it is important that the system of sewers of which this is a part was constructed by the city with a view to assessing the cost thereof, within the limit of two dollars per foot, upon the abutting property, which, it is admitted, the statute authorized. The rule in question was adopted and properly conditioned to require that those who had not paid assessments should, when desiring to use the sewer, accept an equal burden with those who had. We cannot say that the rule is unreasonable. Its application to this case is obvious.

Judgment reversed.


author: By the Court.

text:
    The New York, Pennsylvania & Ohio Railroad Co. v. Clark et al .

      Action for money-^-Defendant's offer to confess judgment refused— Plaintiff fails to recover more than offered — Defendant entitled to costs.

    Where one of several defendants in an action for money only, offers to confess judgment for a certain sum under section 5140, Revised Statutes, and such offer is not accepted, and the plaintiff fails to recover more than was offered, such defendant is.entitled to judgment against plaintiff for his costs from the time of such offer.
    (Decided April 28, 1896.)
    Error to the Circuit Court of Medina county.
    Harriet A. Clark, plaintiff below, brought an action against the N. Y. P. & O. Railroad Company and the N. Y. L. E. & W. Railroad Company, for damages for personal injuries. Issue being joined between the parties, the N. Y. L. E. & W. company before the trial, served upon the plaintiff below an offer in writing to allow judgment to be taken against said company for the sum of fifteen hundred dollars, which offer was not accepted by her. Upon the trial she recovered a verdict against both companies for just fifteen hundred dollars. There-, upon the company which made the offer, claimed that it was entitled to a judgment against her for its costs from the time of such offer. The court of common pleas refused to render such a judgment for costs and rendered a .judgment against both companies for the amount of the verdict and for all the costs, to which the N. Y. L. E. & W. company excepted. The circuit court affirmed the judgment of the common pleas. Thereupon the N. Y. P. & O. company filed a petition in this court to reverse the judgment below on other grounds, and the N. Y. L. E. & W. company filed a cross petition in error to reverse the judgment below as to costs.

      N. B. Tidballs, and W. E. Talbot, for cross-petition.

      W. IT. Upson, and J. J. Hall, for Harriet A. Clark.
   By the Court.

In an action for the recovery of money only, against two or more defendants, either one of such defendants has the right, under section 5140, Revised Statutes, to offer in writing before trial to allow judgment to be taken against such defendant for a sum named in such offer, and upon a refusal to accept such offer, and a failure to recover more than was offered, such defendant is entitled to have judgment rendered against the plaintiff in his favor for his costs from the time of such offer. In such case judgment should be rendered against both defendants for the amount of the verdict and costs up to the time of. the offer and judgment for the remainder of the costs against the defendant who made no offer, and judgment against the plaintiff in favor of the defendant who made such offer for his costs from the time of such offer.

Thejudgment against the N. Y. P. & O. company should be affirmed. The judgment against the N. Y. L. E. & W. company for the amount of the verdict should be affirmed, and the judgment against said last named company for costs should be reversed, and the costs should be divided, and so much thereof as accrued before said offer was made should be adjudged against said company, and said company should recover judgment against the plaintiff below for its costs which accrued after said offer was made, and she should pay the costs by her made from the time of said offer, unless she can compel the other defendant to pay the same.

Judgment accordingly.


author: Minshall, J.

text:
    Sammis et al. v. Sly.

      Attachment — Levy on property by mistake — Title of owner not affected, when — Property destroyed by fire — Loss of owner, not of officer or attaching creditor.

    1. Where an attachment is levied on the property of a third person under the mistaken belief that it belongs to the defendant in the attachment suit, the title of the owner is not thereby changed, unless he treat the property as abandoned to the officer or attaching creditor and sue for its conversion.
    2. Where, in such case, no such custody is taken of the property by the officer as deprives the owner of his control over it, and it is lost by fire before the commencement of a suit for the conversion — the fire being in no way attributable to the fault of the office^ or the levy of the attachment — the loss is that of the owner and not that of the officer or attaching creditor.
    (Decided May 26, 1896.)
    ERROR to the Circuit Court of Huron county.

      Stephen M. Young, for plaintiffs in error.
    True the constable in his return stated that he had levied upon the stack of rye but the defendant in error was not a party to the suit in which said return was made nor privy to any party, he was not concluded by the return, if he was not bound by it, surely the plaintiffs were not, for estoppels must be mutual. 7 Am. & Eng. Ency. of Law, p. 23.

      Even the levy of an execution, requires the officer to take actual possession of the property as far as the nature of it will permit. Murphy v. Swadner, 33 Ohio St., 95.
    The fact that the officer took an inventory and indorsed the levy on the writ does not constitute such a seizure as makes a valid levy. Minor v. Smith, 13 Ohio St., 82.
    No statute of this state specifically points out the method of levying an execution, so that upon that question we are forced to look for guidance to the common law and to the adjudications of the courts, but as to attachments the language of the legislature is plain and emphatic. The officer shall take it into his custody if it can be come at and hold it subject to the order of the.justice. Rev. Stat., section 6493. The officer must take actual custody in. attachment. Root v. Railway Co., 45 O. S., 227. Although in execution constructive possession may be sufficient. The custody must be such that the property cannot probably be withdrawn without the officer knowing it. Drake on Attachment, section 256. The officer cannot leave the property in the possession of the person with whom found except upon the execution of a redelivery bond. Rev. Stat. section 6494. A valid levy is not had unless the property is brought within the dominion of the officer. Balling v. Vandiver [Ala.] 8 So., 291. The officer must do that which amounts to a change of possession. Crawford v. Newell, 23 Iowa, 453. A valid levy of an attachment is not made where the officer merely goes to the place where the property is, appraises it without taking it into his possession or exercising any dominion or control over it. Lyeth v. Gibbs, 44 Kansas, 159.

      It will scarcely be claimed that the officer, by laying his hands on the stack, added anything to the efficacy of the levy. 1 Maule & S., 710: Crisman v. Dorsey, 12 Col., 567. The fact that the property attached consists of bulky articles, difficult of removal, does not excuse the officer from taking possession. Such an attempted levy is effective and inoperative to affect the rights 'of strangers to the writ. While a levy, if wrongful, is a trespass, to constitute it such it must be an actual levy, not a mere paper one. Fernald v. Chase, 37 Me. ,289. ” A mere paper levy will not'do. Crisfield v. Molleal, 36 Kan., 282; Throop v. Maiden, 44 Pac. Rep., 801. A mere levy without possession being taken thereunder, while it may be a technical trespass, will entitle the owner to but nominal damages. Dixon v. White Sewing Machine Co., 5 L. R. A., 659.
    If there was a conversion it dates from the time of the levy, if levy there was. Acheson v. Miller, 2 O. S., 206. If there was a valid levy it was instantly abandoned.
    Where an officer, after levying upon property,, departs, leaving the property in the possession of the person with whom it was found, it is an abandonment of the levy. 7 Lawson’s Rights and Remedies, .section 357. Russell v. Major, Nev. App., 167. That the lien of the attachment is lost if the officer or his agent fails to retain the custody and possession of the property. Hardin v. Sissons, 36 Ill., App., 383. If the officer voluntarily abandons the custody the attachment ceases to exist. Doolittle v. McCollough, 7 Ohio St., 308.
    The fact that the officer made return upon the writ that he attached the property cannot benefit the defendant in error, he is a stranger to the suit, there is no mutuality between him and the plaintiffs in error, hence no estoppel arises. Faris v. Ohio, 3 O.S.; Brownell v. Durkee, 79 Wis., 658. Under the presumption that every one knows the law, he knew that the constable, by failing to take the property into his custody had not made a valid levy, or that the officer had by leaving it in the possession of Goodrich where it had been found, had abandoned the levy as soon as made, so that at the very time he was making the claim of ownership, the officer, in law at least, had no claim and was asserting none, but had relinquished the property to him and to all the world beside.

      Andrews Bros., for defendant in error.
    Taking up the first proposition of law, it is plain, we think, that where an officer, carrying a valid writ of attachment, goes with witnesses into the presence of property, and then and there, placing his hand upon the property, publicly declares that he levies upon it by virtue of his writ, and thereupon causes the property to be duly appraised and makes due return of such levy, that the levy of the attachment is complete and the property is thereupon ‘.in the custody of the law.” Pugh v. Calloway, 10 Ohio St., 488. 4 Kernan, 270; 23 Wend., 462; Minor v. Smith et al., 13 Ohio St., 82, 83; Gibson et al. v. Chillicothe Bank, 11 Ohio St., 311, 14 Ohio St., 73; 20 Ohio St., 57; Herman on Executions, sections 158, 161, 165; 1 Amer. and Eng. Ency. of Law, 929, n. 6.
    An attachment is simply a levy of an execution in advance of judgment. It is taking of the property *‘into the custody of the law,” pending the trial. ' Hence, the levy of an attachment — if wrongful — ■ would amount to a trespass to the same extent and for the same reason as would the wrongful levy of an execution.
    “If an officer totally deprives the owner of his property he is liable for its full value, and if but for a limited time, he is liable for that time ; but if the property is wrongfully taken and is afterwards returned, such return simply mitigates the damages. Gibson et al. v. Bank, 11 O. S., 311, see 321; 20 O. S., 57.
    Where wrongful dominion has been so exercised by a trespassér, and the owner of the property determines to sue for the value of the same, the cause of action relates back to the time of the wrongful taking. Atcheson v. Miller, 2 O. S., 203.
    It is claimed that, because the officer did not remove the stack of rye; or, having taken it into his custody, he did not leave a watcher to continue that custody, the plaintiffs in error are completely relieved from all liability for the wrong done.
    The custody required by law, must correspond to the nature of the property taken. And that there is no necessity for removing bulky property, such as a stack of rye. See Herman on Executions, see. 161; 7 Lawson’s Rights and Rem., sec. 5360; 10 Ohio St., 496; 13 Ohio St., 82-3; Swan’s Treatise, 286.
    The failure to leave a watcher does not relieve Towne and Sammis from liability for the wrongful taking of Sly’s property. • •
    A custodian, if afterwards placed in charge, could only have continued the wrongful possession already taken.
    We do not stand here in the position of either a “creditor or purchaser of the debtor,” pending the attachment. And it is only as to 11 such third persons” that this continued custody is required; (45 O. S., 228),'the purpose of the statute being to prevent fraud and imposition upon innocent parties, which might result from secret levies or other secret rights acquired.
    It is a novel proposition that the officer himself should receive immunity from the consequences of a complete wrongful seizure of property, because he subsequently failed to properly notify third persons of having- committed that wrong.
   Minshall, J.

On an order of attachment, issued by a justice of the peace in a suit before him of Anson Sammis against Edward Goodrich, S. P. Towne, a constable, to whom the writ was directed, on September 19, 1891, levied the same on a stack of rye on the premises of Goodrich. The levy was made by laying his hands on the stack, and in the presence of witnesses declaring that he made the levy on it under his writ, as the property of Goodrich; and, after causing it to be appraised left the stack where he found it, by the direction of the plaintiff, and returned that he had duly attached it. No actual possession was taken of the property. After this the property was destroyed by fire, without the fault of the constable or attaching creditor. The property was claimed by Robert Sly, who afterwards, on September 19, 1892, commenced an action in the common pleas court against the constable and plaintiff in the attachment suit, to recover as damages the value of the property on the ground that by the levy of the attachment, the property had been converted to the use of the defendants, and he had been prevented from threshing it as he would have done before the ñre. The defendants claimed that no actual possession had been . taken of the property; and that as a matter of law the property had not in fact been attached, the property not having been taken into the actual possession of the constable as required by section 6493, Revised Statutes. The issues having been made up, the case was tried to a jury, which rendered a verdict against the defendants for the sum of $124.58. A motion for a new trial was made, and overruled by the court, and exceptions taken by the defendants; and judgment was rendered on the verdict; which, on error, was affirmed by the circuit court. The principal errors assigned arise upon the charge of the court and on its refusal to charge as requested.

The court, among’ other things, was requested to charge the jury that:

“1. It is the duty of an officer, after he has attached property, to retain possession of it, he has no right to allow the property to remain in the possession of the defendant in the attachment; if, therefore, you find that Mr. Towne, after attaching the property in this action as the property of Goodrich, or that were in the possession of Goodrich, without appointing anyone to take charge of the same, and that he himself left said premises, and departed therefrom, such action on the part of the constable was an abandonment of the levy, and if thereafter, the property was destroyed by fire, there can be no recovery for such loss in this action.
“2. If the jury find from the evidence that the premises whereon the stack of rye in dispute is situate was in the possession of Goodrich; that, after the constable attached said stack as the property of Goodrich, he went away from said premises leaving said stack thereon, and never thereafter asserted nor exercised any control over said stack, then in that case the jury have the right to find that the levy of said attachment was abandoned, and if thereafter, said stack was destroyed by fire, the said plaintiff cannot recover for said loss in this action.
“3. Even though the levy of the attachment upon the property in this action was wrongful and the same had not been abandoned prior to the destruction of the stack by fire, yet if the fire was not occasioned by such wrongful taking and was not caused by the defendants, or either of them, or was not caused by the negligence of them, or either of them then in that case there can be no recovery in this action, for such loss or for the value of said property.
“4. A levy of an attachment upon property belonging to one person as the property of another is wrongful, but if after such wrongful levy is made, the officer making the levy at the direction of the attaching creditor, does not retain the property m his custody, but leaves it upon the premises of the debtor, where the same was found, so that the said debtor, or the real owner could have taken possession of the same without the knowledge of said officer, or anyone representing him, and thereafter the property is destroyed by fire, the real owner of said property cannot, after said loss, elect to treat said wrongful levy as a conversion of said property. ’ ’

Each of these requests was refused, and the defendants excepted.

The court then charged the jury that:

“The only question for you to determine is that of the value of the stack of rye, and in determining that, the burden of proof is upon the plaintiff. In determining this question, you will look at all the evidence, and will say by your verdict, what was the value of that stack of rye at the time this levy was made, on the 19th day of September, 1891.”

To which an exception was also taken by the defendants at the time and duly reserved.

In so charging and in refusing a number of the charges requested,-we think the court erred. The gist of the plaintiff’s action is a conversion of his property by the defendants, 'not negligence in the care of it. The conversion was, at most, a technical one, a dealing with the property of the plaintiff as if it were that of the judgment debtor. The property was not, in fact, converted; all the officer did was to place his hands on- the stack, saying, as he did so, that he attached it as the property of the attachment debtor. It was then left .where found. For this it will be conceded .the owner, Sly, had the right to treat the levy as a conversion of his property. The effect of such suit is to abandon the property to the wrongdoer, and, in consideration of this, the law gives to the plaintiff a recovery of its value. But the owner, whose property has been wrongfully intermeddled with, is not bound-to pursue this remedy. He has the election to do so, or recover the property in an action of replevin, based upon his title. Until he makes his election, by bringing a suit for conversion, the title remains in him; otherwise he could not at his election maintain replevin. In other words a mere intermeddling with another’s property in a way to deny his title, does not of itself divest his title. He may treat it as such by commencing an action for a conversion, but until this is done the title remains in him. In this case the suit for conversion was not commenced until sometime after the fire, so that at the time of the fire the title to the stack of rye was in the plaintiff, and no negligence having been imputed to the defendants as the cause of the fire, the owner of the property, the plaintiff, at the time of the fire, must bear the loss in accordance with the maxim resperit domino. True the plaintiff says that, but for the levy, he would have threshed the rye before the fire, and that he was prevented thereby from doing so. This must be considered in connection with the undisputed facts. He was no party to the proceeding in attachment, and the levy could not, therefore, like an injunction, in any way restrain him from exercising his rights of ownership. The actual pos- ■ session not being disturbed, he had the same right and ability to take care of his property that he had before the levy; and if he failed to do so it was his own fault. The levy,° as made, did not deprive him of the right nor make it unlawful for him to do so. If he were the owner of the property as claimed, he would be liable to no one for dealing with it as he pleased, notwithstanding the levy.

If the property had been taken into the actual custody of the officer and so as to deprive the owner of any control over it, a different rule of liability might apply. In such case there would be much reason for holding that, irrespective of the question of care, the officer having wrongfully deprived the owner of the care of .his property, should be liable for its loss from any cause, other than the act of God or public enemies; for, in such ease, but for the wrong, the loss might not have occurred. But as between the officer and the creditor or the debtor in the attachment suit, it seems -well settled that the officer is not liable for the destruction of the property while in his custody by fire or other means, unless guilty of a want of ordinary care. Swan’s Treatise, 16th Ed. 291; Story on Bailments, 2d Ed., section 132; Crocker on Sheriffs, 3d Ed., section 448 and section 855. This rule is placed by Story on the ground that the officer is a bailee for hire and' should not be held to a greater nor less degree of liability than is required by the common rule in such cases — ordinary diligence. But as to a third person, whose property has been wrongfully taken under the writ, the reason does not seem to apply. As to such person he would seem to be a wrongdoer, and not a bailee of any kind. But this question is left undecided; and the decision placed on the grounds before indicated — that the owner was not in fact deprived of the custody of his property, nor of the title thereto by the levy; and the fire not being referrable to the levy, nor to any want of care on the part of the officer, the loss occasioned by the fire fell to the owner of the property.

A question might also be raised as to whether there was any attachment of the property in fact, the property not having been taken into the actual custody of the officer as required by section 6493, Revised Statutes, And see Shinn on Attachment and Garnishment, section 244; Drake on Attachment, section 292a; Waple on Attachment, 175. It was on this ground that, in Root v. Railroad Company, 45 Ohio St., 227, it was held that the property sought to be attached in that ease, had not been attached as against the subsequent levy of a judgment creditor. But it is not necessary to decide this question here; for although it was held that, for the purposes of an attachment, such custody was taken as the nature of the property would permit, yet it was not such as precluded or hindered the owner from taking care of it himself. At the time of the fire he claimed to own the property, and did in • fact own it, having as yet commenced no suit for the conversion of it.

He does not even claim that, by reason of the levy, he had become remiss in caring for it. And such claim, if true, would, for reasons before stated, be of no avail in an action for conversion commenced after the fire. It is fair to presume from his claim of ownership that he took the same care of the property after the levy as before; and, in bringing this action simply seeks a double advantage; ,or in the language of the. old adage “seeks to have his cake and eat it too.”

The court then erred in charging the jury that the only question for it to determine was the value of the stack of rye. There was the question as to the actual ownership of the property; whether any levy had in fact been made that bound the property in attachment; and if so, whether such custody and control had been taken by the officer as to hinder the plaintiff from taking care of it. This we think was so radically wrong as to require' a reversal of the judgment whether any of the particular requests of the defendants should have been given or not.

But we are of opinion that the fov/rth request should at least have been given: The gist of this instruction is that conceding the attachment to have been wrongful, yet if, by it the owner was not deprived of the care and custody of his property he could not maintain an action for the conversion of it commenced after -its loss by fire. This is in accordance with the view we have taken of the law applicable to the case.

And on the question whether the property had in fact been attached the first instruction asked and refused properly stated the law applicable thereto.

Judgment reversed and new trial moan-ded.


author: Shauck, J.

text:
    The Village of Monroeville v. Root.

      Right of parties as to instructions to jury — Section 6190 Rev. Siat.— Act of March 8,189% (89 Ohio Laws, 60) — What constitutes er~ rors.

    1. Section 5190, Revised Statutes, as amended March 3, 1892 (89 Ohio Laws 60),confers upon parties the right to have such correct written instructions as may be requested given to the jury before the argument.
    2. To constitute error under this provision of the statute, the record must affirmatively show that the court was requested to give such instructions before the argument, and that.its refusal to do so was the subject of an exception.
    (Decided May 26, 1896.)
    Error to the Circuit Court of Huron county.

      O. P. <& L. W. Wichham, for plaintiff in error.
    In this case the error assigned, and for which the circuit court reversed the judgment of the court of common common pleas, is the refusal of the trial court to give to the jury, before argument, certain charges.
    It is contended by counsel for defendant in error, that under section 5190, Revised Statutes, subdivision 5, it is the duty of, and mandatory upon the court, to give instructions to the jury before argument, if requested so to do by either party. When the jury is sworn, the trial shall proceed, except as provided in the next section, in the following order, unless the court for special reasons otherwise direct. When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to he given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.

      Umbenhauer v. The State, 4 Cir. Ct. Rep., 378; Dural v. Fuhrmau, 3 C. C. R., 305; 23 Bull., 176; 19 Bull., 424; 1 Bull., 290.
    We contend that under section 5190 it is within the discretion of the court to change the order of the proceedings of the trial if there be “especial reasons ” for the same. Dille v. Lovell, 37 Ohio St., 415.
    It is well settled, that, before this court will reverse a judgment, the error complained of must be material, and appear to be to the prejudice of the party seeking to take advantage of it; and must moreover be affirmatively shown by the record. Courtright v. Staggers, 15 O. S., 514; 25 O. S., 635; 12 O. S., 10; 6 O. S., 182: 23 O. S., 367; 20 O. S. 361; 4 O.S., 251; 5 O. S., 88-375.
    It does not appear that the defendant in error was prejudiced by the refusal of the court to give the charges before argument. The plaintiff below could not have been prejudiced by the fact that the court gave the law requested in the charges, in his own language, instead of giving the charges as written. Bond v. State, 23 O. S., 349; 14 O. S., 592; Enc. of Law, vol. 2, p. 239.

      Q. T. <& O. JET. Steiocvrt, A. E. Rowley <& Andrews Bros., for defendant in error.
    The plaintiff in error attempts in its brief, to set off the discretion of the court of common pleas against its manifest errors, in refusing to give to the jury, at the close of the evidence, each and all of the ten written instructions on matters of law, duly presented to that court by the plaintiff below, at the trial of the case before it, rejecting eight of them. There is no pretense that there was anything wrong in these eight requests so refused; but on the contrary, it is said that thesubstanceof them was given by the court as good law, in its own way and words, at the time of its final charge to the jury; and that it had the power, at its discretion, to thus change the statutory order of trial. The law then in force was that of March 3, 1892. Revised Stat. 5190.
    It is here pretended, that the court had the right, at its own discretion, in effect to strike from the statute the words “ before the argument to the jury is eommeneed,” and to substitute the words after the argument to the jury is closed. It being conceded that the requests werefor proper instructions, this right of the plaintiff was four-fold.
    1. To present them to the court in writing.
    2; To have them given to the jury in the form so presented:
    3. To have this done before the argument to the jury was commenced;
    4. To have them all taken by the jurors, in their retirement, and returned with their verdict into the court, and to remain on file with the papers of the case; as required in the seventh clause of the section.
    These together composed a very important right, of which, it was a great wrong to deprive the plaintiff below. Lutterbeck v. Street Railway Co., 1 Ohio, 141; Jones on Negligence of Munici. Corp., Secs. 89, 221; Township of Kingston v. Gibbons, S. C. Pa. 44, Leg int., 169; Celestia Center v. City of Toledo 34 W. L. B., 213; McKeigue, Adm., v. City of Janesville, 68 Wis., 50; Delger v. City of St. Paul, 14 Fed. Rep., 567; Bullock v. Mayor, etc., of New York, 99 N.Y., 654.
   Shauck, J.

Root sought to recover in the common pleas court for injuries alleged to have been sustained by him in consequence of the rough and unsafe condition of a walk of the village. The answer denied the negligence of the village and alleged that if the plaintiff sustained injury it was due to his own negligence, and this allegation was denied by the reply.

On the trial there was .evidence tending to show the negligence of the village in maintaining the walk, and that the plaintiff had actual knowledge of its condition.

At the close of the testimony, and before the argument, counsel for the plaintiff, in writing, requested the court to give .ten propositions in charge to the jury. This the court refused to do and the plaintiff excepted. After the argument in its general charge, the court gave such of the propositions so requested as were correct statements of the law applicable to the case. In so far as it modified the instruction requested, its action was justified by Shaeffler v. Sandusky, 33 Ohio St., 247.

The jury returned a verdict for the village and a motion for a new trial being overruled judgment was entered on the verdict.

In the circuit court this judgment was reversed, not, as we under stand the record, because the trial court was thought to have erred in defining the legal duty of either party, but because it did not give before the argument the sound propositions requested.

We think the circuit court took the correct view of the fifth subdivision of section 5190, as amended March 3, 1892, 89 Ohio Laws, 60: “When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.” Counsel for the plaintiff in error contends that it is still a matter of discretion with the trial judge to give the propositions requested either before or after argument. This view denies all effect to the amendment. Before the amendment the statute authorized the requests for instructions to be made before the argument, but, as it was interrupted, it required of the court nothing- more than the giving of such requested instructions as were proper before the final submission of the cause. Since the legislature has taken care to confer upon a party the right to have the instruction given before the argument, the courts cannot say that there is no substantial error in a denial of the right.

But, notwithstanding this provision of the statute, it must frequently, if not usually, be a matter of indifference to counsel whether the requested instructions precede or follow the argument. And it will still be proper for counsel to present their requests to the court before arg-ument, even if they are willing that they should be givefn after it. The record submitted to the circuit court did not show that this was not a case of that character. It does show that the propositions were submitted to the trial judge before the argument, and that there was a request that they be given to the jury. But it does not appear that it was desired that they be given before the arg’ument. Nor does the exception show that it was taken to a refusal to give the instruction before the argument. It cannot be inferred from this record that the attention of the trial judge was in any way called to the right conferred by the amended statute. There was, therefore, no case for a reversal upon the ground stated by the circuit court.

Judgment of the circuit court reversed and that of the common pleas affirmed.


text:
    The Village of Conneaut v. Naef.

      Contributory negligence — Liability of village for injtwy to pedestrian.

    One who goes- voluntarily upon an accumulation of ice on a walk of a village cannot maintain an action against such village for a personal injury resulting to him, if the source of danger is plainly visible.
    ( Decided May 26, 1896.)
    Error to the Circuit Court of Ashtabula county.
    Naef brought a suit in the court of common pleas to recover from the village on account of personal injuries by him sustained, from falling on a sidewalk of the village, his fall being due to an’ accumulation of ice on the sidewalk. The injury occurred on the 11th of January. The presence of the ice was, as alleged, due to defects in the eaves troughs and spouts upon a building owned by one Guthrie, and the negligence charged against the village was that it permitted the ice to accumulate and remain upon the sidewalk.
    The answer of the village denied all knowledge of its officers of any defects in the spouts, denied that it wa*s negligent, and alleged that the condition of the spouts was well known to Naef, and that any injury which he received was caused by his own negligence.
    On the trial evidence was introduced tending to show that water escaping from a broken spout attached to the building froze as it fell until it formed a ridge or hummock of ice several inches in height and extending half way across the walk which was ten feet in width. On this the plaintiff fell at about eight o’clock in the morning. In his charge to the jury the trial judge gave the following instruction: “If there was a ridge of ice partly across this sidewalk, in plain sight of a person attempting to cross it in daylight, it would be negligence in such person to attempt to cross it if he had another way to proceed that was not dangei’ous, within the bounds of the sidewalk, and under such circumstances a plaintiff thus making the attempt to cross cannot recove:*. ”
    There was a verdict in favor of the village. The plaintiff’s motion for a new trial having been overruled, he filed a petition in error in the circuit court, where the judgment was reversed, as the record shows, for no other reason than the giving of said instruction.

      Allen M. Gox and B. G. Andrews, for plaintiff in error.

      Hoyt & Munsell, for defendant in error.
   Shauck, J.

Confining our view to the ground of reversal stated in the judgment of the circuit court, we assume, that all other questions were properly decided in favor of the defendant in error. The instruction was pertinent to the issues and the evidence, and the only question is whether it imposed upon the plaintiff, as a condition to recovery, a higher degree of care than the law requires. If it did not, it is not objectionable because it stated the rule definitely instead of leaving it as a matter of inference to be drawn by the jury from a statement of general principles. This is determined in Schaefler v. Sandusky, 33 Ohio St., 246, where it is held as matter of law, that one who voluntarily attempts to pass over a sidewalk of a citjq which he knows to be dangerous by reason of ice upon it, which he might easily avoid, cannot maintain an action against the city to recover for injuries sustained by falling upon the ice. The precise question left undetermined by the case cited is whether in eases of this character a recovery will be denied on account of the plaintiff’s failure to avoid a 'source of danger that is plainly visible as well as one that is actually known.

Early in the century Lord Ellenborough answered this question affirmatively in Butterfield v. Forrester, 11 East, 60, and his concise and accurate statement of the law has been the subject of much commendation. It has been expressly approved in many cases, though in some its legitimate effect may have been denied. Durkin v. Troy, 61 Barb., 437.

That there can be no recovery in such case is a necessary result of the established rule of the common law that the concurring negligence of two parties will not be compared nor its consequences apportioned. In cases of collision resulting from such concurring negligence it must often be a matter of chance upon which party the injury will fall, and, therefore, a matter of chance which party would recover if a recovery were permitted. There would be manifest absurdity in permitting a recovery by one who would be liable if he had been lucky.

The essence of the instruction given in this case is that the law exacts from the plaintiff, as a condition to a recovery, the same care for himself which it authorizes him to require of the defendant. , The principle is general. It would be difficult to suppose a case in which there would be more obvious propriety in its application. There was no defect in tlie walk. No act of the village caused the accumulation of ice. If it was negligent it was only because its officers had failed to observe and remove a source of danger which, according'to the instruction given, the plaintiff was under equal obligation to observe and avoid.

Whether the village was guilty of actionable negligence may well be doubted in view of Chase v. Cleveland, 44 Ohio St. 505.

Judgment of the cwcuit cou/rt reversed and that of the commonpleas affirmed.


author: Bradbury, J. Burket, J.,

text:
    The Defiance Water Company v. Olinger.

      Damages — Diability for negligence — Dwelling on property of and owned by the negligor — Regarded as adjoining property — • Visitor at same may maintain action.

    1. One who collects *on his own premises a substance liable to. escape, and, if it should escape, likely to cause mischief, must, at least, use reasonable care to restrain it. If for want of such care it escapes and injures persons or property rightfully on adjoining premises, he is answerable for the damages sustained on account thereof.
    2. Where such dangerous substances and a dwelling house are both situated on the same parcel of land, and subject to the same general ownership, the dwelling house should be regarded, in this connection, as situated on adjoining premises, if it is in the possession of and occupied as a family residence by a tenant; even if such tenancy be at will, only, by a serv- ' ant of such owner, and his occupancy is without a fixed rental, but is part of the compensation paid for his services, and such services are performed in or about the businesswith which such dangerous substance is connected. A guest, by the express or implied invitation of such tenant, is rightfully at his residence; and if while there as such guest such dangerous substance so collected on the adjoining premises escapes by the fault of the person, who collected it, and injures her person, she may maintain an action against him to recover damages sustained on account thereof.
    (Decided May 26, 1896.)

      Error to the Circuit Court of Defiance county.
    Almeda Olinger, defendant in error, brought an action in the court of common pleas of Defiance county, against the Defiance Water Company, plaintiff in error, to recover on account of injuries she claims to have received by reason of the negligent manner in which the Water Company stored water on its own premises. A demurrer to the petition was sustained by the court of common pleas ; the cause was then taken to the circuit court on error, where the petition was held to be sufficient, and the judgment of the court of common pleas reversed.
    Thereupon a petition in error was filed in this court by the Water Works Company, seeking to reverse the judgment of the circuit court and affirm that of the court of common pleas.

      Hert/ry cts Edward U. JVewbegin, for plaintiff in error.
    The only negligence alleged against the defendant is in the original defective material of which the stand-pipe was constructed, and possibly in its defective construction, and that it had become cracked and weakened to the knowledge of the defendant, prior to the day of the accident.

      Wcmi of knowledge of the condition of the standpipe Toy the plaintiff is not alleged, and for aught that appears in the petition, she took the risk of remaining in the vicinity of the stand-pipe with her eyes wide open .as to the danger.
    ■ What negligence is intended to- be charged against the defendant by the plaintiff’s being in John Gillum’s house at the time of the accident it is impossible to determine. One would say that as between herself and John Gillum, being his

      mother-in-law, and he having invited her there, she had a right to be in his house. ,. Neither will the law presume but that John Gillum owned the house and what was beneath it, whether land or water, and that he rightfully occupied it.
    The case of P., F. W. & C. R. R. Co. v. Bingham., 29 O. St., 364, is conclusive of the case in favor of the plaintiff in error. Farris v. Hoberg, (Ind.), 33 N. E. Rep., 1028; Gibson v. Leonard, (Ill.), 32 N. E. Rep., 182; Benson v. Balto. Traction Co. (Md. Court of App., June, 1893), 26 Chicago Legal News, 44; Doyle v. Un. Pa. R. R. Co.. 147 U. S., 413 (S. C. 13 Sup. Ct. Rep., 333; Woolwines, Admr., v. Ches. & O. R. R. Co., 28 Law Bulletin (Ohio), 269-271. Bigelow’s Leading Cases on Torts, 697 to 703.

      Enos <& Johnston, for defendant in error.
    It is a well known principle of law that every one must use his property in such manner as not to injure others. Ray on Neg., 7; 12 Ohio St., 392.
    A structure erected near the line of another’s land and falls over onto it, to his injury, the owner of the structure is liable for the injury, Schwartz v. Gilmore, 45 Ill., 455; Shear. & Red. on Neg., part 498 ; 3 Hill, 531; 2 Denio, 433; Hoy v. Cohoes Co., 2 N. Y., 160; Tremain v. Cohoes Co., 2 N. Y., 163. 3 Camp., 398; Gray v. Boston Gas Co., 114 Mass., 153.
    It was not necessary to plead knowledge in theJ water-works company, for if it was .a duty, and we have clearly shown it was, which the company owed the defendant in error, then knowledge was not necessary.
    In the case at bar there was no trouble with the house in which Mrs. dinger was visiting. This house was owned and occupied at the time by her son-in-law, John Gillum ; the stand-pipe, 150 feet away, had no connections with the house; and it was from, the fall of the stand-pipe and flow of water that the injury arose.
    She was an invited guest at the house of Gillum, hence lawfully there; Mr. Gillum was residing'in the house at this time, and he was lawfully there.
    It is claimed by the .plaintiff in error, that Mrs. Olinger should look to Gillum for her damages.
    That might be true if Gillum’s house had been the cause of the injury.

      Chauntler v. Robinson, 4 Exch., 163, 167.

      Nichols v. Marshall, L. R., 10 Exch., 259, 260; 2 Thompson on Neg., sec. 1220; Shipley v. Fifty Ass., 101 Mass., 253; 125 Mass., 239; 9 Allen, 17; 14 Ill. App., 170; Ray on Neg., 147.
    When a person makes an artificial use of lands, he is liable for all damages from such use, without reference to the degree of care and caution which he may have exercised to prevent injury. Under such circumstances he is an insurer against loss or damage to others, not caused by “ Vis major. ” Illustration of artificial use — when a person makes an artificial use of land, for instance, by storing water on his premises.

      Rylands v. Fletcher, L. R., 3 Exch., 352; Rylands v. Fletcher, L. R., 1 Exch., 265; Tanant v. Goldwin, 2 Ld. Rayne, 1089; Smith v. Fletcher, L. R., 7 Exch., 305; Bonomi v. Backhouse, 96 E. C. L., 622; Stroyare v. Knowles, 6 H. & N., 454; Brown v. Robins, 4 H. & N., 185; Pixley v. Clark, 35 N. Y., 520; Mears v. Dole, 135 Mass., 508; Ball v. Nye, 99 Mass., 582 ; Baird v. Williamson, 109 E. C. L. R., 376; Buckingham v. Elliott, 62Miss., 296;

      The principle underlying all the decisions is, that a man has the right to erect on his ground any structure he pleases, but he has to see to it that it does not injure his neighbor.
   Bradbury, J.

The decision of this case depends upon the nature of the liability incurred by one who collects and maintains upon his premises a substance liable to escape and injure others.

The petition discloses that the Water* Company had erected on its own premises a large iron tank, or stand pipe, about twenty feet in diameter and one hundred and forty feet high, which it maintained full of water, for the purpose of supplying its customers, the city of Defiance, and its inhabitants. That it owned a dwelling house situated within fifty yards of the stand pipe which was occupied by one John Gillum as a residence, who .is conceded to have been a servant of the Water Company. That the defendant in error was the mother-in-law of said Gillum, and on the day of the accident was at said dwelling house as his invited guest. That the stand pipe had been negligently constructed and prior to the accident had become cracked and weakened to the knowledge of the Waterworks Company, and that they negligently permitted ice to form, and sand, earth and dirt to accumulate therein, and that by reason of its defective construction this accumulation of ice, sand, etc., and its cracked and weakened condition, so negligently permitted, the stand pipe fell, whereby the water escaped therefrom with such force as to crush said residence and overwhelm the defendaut in error, causing the injuries to her person of which she complained.

Do these facts constitute a cause of action?

That the fall of the stand pipe and the resulting rush of its waters by which the defendant in error was overwhelmed and injured, was due to the negligence of the plaintiff in error is admitted by the demurrer to the petition. She was at the dwelling house of her son-in-law, as the guest of himself or family, as she had a lawful right to be, and while such guest, without the slightest fault chargeable to her in connection with the accident, sustained injuries attributive solely to the wrongful conduct of the plaintiff in error. If under these circumstances she cannot recover for those injuries, it .is because the plaintiff in error owed her no duty in this connection.

. The terms as to rent, or otherwise, upon which the dwelling house was occupied do not appear. Gillum, the servant of the company, may have been a mere tenant at will, occupying it as part of the consideration he was receiving for his services, the latter being determinable at the pleasure of either party. Whether this supposition ■ accords with the facts, or whether he was occupying it for a definite period at a fixed rental is not material, in either case it was in his possession and occupied by him as a family residence. Whatever might be the character or duration of his title, it was within the principle of those rules of law which protect a proprietor against injuries caused by acts committed on adjoining premises. His rights may not have been as extensive and valuable as those of an owner in fee, but such rights as he possessed were entitled to protection. These protective principles enfold persons and personal property as well as real estate. To collect and maintain upon one’s premises, substances likely to do mischief, if they escape, menaces persons and personal property in the vicinity equally with the real estate. And such persons or personal property when rightfully there, should be equally protected.

The defendant in error was the guest of the occupant of the dwelling house; it was his privilege to expressly or impliedly invite her, and she had a right to accept the invitation; Being rightfully there, as the guest of the occupant of the dwelling house that was overwhelmed with escaping water, we think her rights in this connection equal to his rights.

This brings us to the consideration of the question of the liability of one who, for his own purposes, collects upon his premises a substance likely-to injure others in case it escapes.

The principle upon which liability rests in such case,is quite unlike that which determines the liability of one who leaves, unguarded, excavations, upon his own lands, or one who negligently constructs a building, so that it falls upon his own premises. In these latter eases no one can be injured unless he comes upon the premises. If he remains away he is safe. In the former, the danger arises from the natural tendency of the things to escape from the premises where stored, together with the likelihood of its doing injury if it does escape therefrom. In England it seems to be.settled by Fletcher v. Rylands, 1 Law Rep. Excheq., that the duty rests upon one who collects and stores upon his premises inanimate substances or animate things from the escape of which injury is likely to follow, to prevent such escape. While this duty may not extend to trespassers, or those who, for their own purposes, without express or implied invitation from the proprieter, chose to come upon the premises, yet that casq (Fletcher v. Rylands, supra) should be regarded as extending this duty to all persons who may be rightfully on adjoining premises. Blackburn, J., in the course of an able opinion and speaking for the whole court, used the following language: “We think the true rule of law is, that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, .and, if he does not do so, is prima facie answerable for all the damage -which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps that the escape was the consequence of a vis major, or the act of God.” * * * “The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water from his neighbor’s reservoir, or whose cellar is invaded by the filth of his neighbor’s privy, or whose habitation is made unhealthy by the fumes and noisesome vapors of his neighbor’s alkali works is damnified without any fault of his own, and it seems but reasonable and just that the neighbor who has brought something on his own property which was not naturally there, harmless to others' so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbor’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief may accrue, and it seems but just that he should, at his peril keep it there, so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this, we think, is established to be the law, whether the things so brought be beasts,or water, or filth, or stenches.”

This doctrine would seem to be in exact accord with justice and sound reason, but in the case before us we are. not required to apply it to its full extent, because the defendant in error, in her amended petition, expressly avers negligence in the construction of the stand pipe, as well as a knowledge that it had afterward cracked and become weakened, a negligent failure to make repairs, and that the accident which caused her injuries was the direct result of such negligence.

Therefore, whether or not she could recover, in the absence of negligence, on the part of the water company in storing the water does not concern us at this time, for however that may be, certainly one who, like defendant in error, is rightfully on premises adjoining those upon which such substances are stored and is injured by their escape, should, upon the plainest principle of natural justice, recover from the proprietor storing the same, damages for such injury, where the escape was caused by negligence.

Judgment affirmed.

Burket, J.,

dissenting:

As I read the petition, the house at which plaintiff below was visiting was on the same premises as the stand pipe, and was a part of said premises, and was not on adjoining premises, and therefore the water company owed no duty to her, and when she went upon the premises without the invitation of the company, she went at her own peril. There is no rule of law warranting the placing- of the house by construction on adjoining premises, when it in fact stands upon the premises of the waterworks company.