author: Okey, J.

text:
    White v. Gates.
    A. had in Ms possession money which he claimed as a gift from B., who was a judgment debtor of C. In proceedings prosecuted by 0. before the probate judge, in aid of execution, the judge found that the money had been placed in the hands of A. by B., to defraud his creditors, and the judge ordered A. to deliver the money to a receiver then appointed by him, to be applied on the judgment, but A. refused to comply with the order :

      Held, that the probate judge had no power to imprison A. as for a contempt, but the receiver must resort to his remedy by action against A.
    Habeas Coepus.
    At the November term, 1883, of the court of common pleas of Ashland county, Joseph D. Mumper recovered a judgment against Thomas White for $1,000 and costs, in an action for malicious prosecution. White’s property, real and personal, worth $10,000, was sold by- him while the suit was pending. A tract of land in Kansas, valued at $1,200,- was taken as part of the consideration, and the title, it is said, was placed in the name of Emily White, wife of Thomas White, and another part of the consideration, consisting of notes, checks and money, was delivered to Mrs. White. A balance of the judgment, amounting to $975, remaining unpaid, and an execution having been returned wholly unsatisfied, Mum-per, in 1884, commenced in the probate court of that county proceedings in aid of execution, an,d Emily White, among others, was summoned before that court. In her examination, she admitted that she had in her possession $3,700, part of the proceeds of the sale of the property above mentioned, but she claimed that her husband, Thomas White, had made to her a gift of the money before the judgment was rendered. She also claimed that twenty years before such examination, on her marriage with White, she had given him sums of money amounting to $100 and upward, and it was further claimed that she had refused to execute the deed for the real estate until it was agreed by Thomas White that she should have the proceeds of the sale.
    The probate court fouud that Emily White had in her possession $3,700 belonging to Thomas White, and that he had placed it in her hands for the purpose of defrauding his creditors ; and thereupon the court appointed Gates, sheriff of the county, receiver, and ordered Mrs. White to pay to him, out of the moneys so in her hands, $975, in satisfaction of Mum-per’s judgment. With this order Mrs. White refused to comply, claiming the money as a gift from her husband. Whereupon the probate court made an order committing Mrs. White to jail as for contempt, “ tliere to remain until she pays said sum as ordered as aforesaid, and purges herself of the contempt aforesaid, or until she be discharged by due course of law.”
    One of the judges of this court allowed a writ of habeas corpus, returnable in the suprgme court, directed to Gates, sheriff as aforesaid, requiring him to produced the body of Mrs. White, and show the cause of her caption and detention. The return shows the cause of detention to be as above stated, and to such return Mrs. White has demurred.

      Jermer & Tracy, for plaintiff.

      It. M. Campbell and McCray <& McCray, .for defendant:
    While the case was under consideration, the court examined the following, among other authorities relating to the question involved. Hodman v. Henry, 17 N. Y. 482; West Side Bamh v. JPugsley, 47 N. Y. 372; Barnard v. Kobbe, 54 N. Y. 520 ; Schrauth v. Savings Banh, 86 N. Y. 390; Wright v. Cabot, 89 N. Y. 576’; 4 Wait’s Pr. 163; Beebe v. Kenyon, 10 N. Y. Supreme Court, 73 ; State v. Becht, 23 Minn. 411 ; Exp. Milburn, 17 N. West. Rep. 965 ; 2 Dan. Oh. (by Cooper) 1046,1047,1063 ; 2 Bishop’s Or. L. § 256 ; Cooley’s Con. L. (5th ed.) 390, note; Const, of Ohio, Art. 1, § 15 ; Rev. Stats. §§ 5457, 5464-5490 ; Union Panic v. Union Panic, 6 Ohio St. 254; Edgarton v. Hanna, 11 Ohio St. 828; Howell v. Fry, 19 Ohio St. 556 ; Evans v. Lewis, 30 Ohio St. 11.
   Okey, J.

The proceedings in the probate court were irregular ; but if the court had jurisdiction to imprison Mrs. White, as for a contempt, on the ground that she refused to comply with the order for the payment of $975 to the receiver, there is no power to discharge her on habeas corpus, however irregular, informal or erroneous the proceedings may have been. On the other hand, if there was no power so to imprison, the order is void, and Mrs. White is entitled to be discharged on habeas corpus, and the result would be the same if the proceedings, in matter of form, had been entirely regular. Knapp v. Thomas, 39 Ohio St. 377; Wehrle v. Wehrle, 39 Ohio St. 365. The question, then, is as to the power of the probate court to imprison in such a case.

Attention has been called to the provision of the constitution (Art. 1, § 15), that “ no person shall be imprisoned for debt, in any civil action, on mesne or final process.” The harshness attending the former practice, when commitment on capias ad respondendum, or capias ad satisfaciendxim was common, doubtless led to the provision, though it should not be construed as confined to arrests upon such writs. Goshorn v. Purcell, 11 Ohio St. 641, 649. But we think the provision has no application here, for it is directed against imprisonment for debt, and neither party claimed, during the examination in the probate court, that the money in Mrs. White's hands was a debt due from her to her husband. The claim she set up. was, that she was the owner of the money by gift; and on the other hand it was contended that the transaction was fraudulent, and hence the money belonged to Thomas White.

The sections of the statute upon the subject (Rev. Stat. §§ 5464-5490), are not arranged as they were when originally enacted, though the meaning of the provisions, taken together, may be the same. The probate judge, on such examination, is authorized to order any property of the judgment debtor, in tbe hands of another person, to be applied toward the satisfaction of the judgment. The judge is also authorized to appoint a receiver. Conceding that the. word property, as here used, embraces money, still there is no power under section 5481, or any other, to imprison for a refusal to obey tbe order, where the person having possession of the money claims to own it; and it will make no difference that the probate judge finds the money to belong to the judgment debtor, and that he has placed it in such person’s hands to defraud creditors.

Under our statutes, Mumper must be regarded as a subsequent creditor of Thomas White, in respect to the sale of the property and the transfer of the proceeds to Mrs. White. The fact that the action to- recover damages for the tort was then pending, makes no difference. Evans v. Lewis, 30 Ohio St. 11. And the claim of Mrs. White, that the money was a valid gift from her husband, was one which she was entitled to have tried, in regular form, by a court of equity, clothed with authority to hear and determine as to the rights of the respective parties, and to enforce the decree in the manner usual in such courts. The proceeding in the probate court was not such suit, or a substitute for it, but a proceeding sum - mary in its character, in the nature of a proceeding in rem, designed to appropriate the property of a judgment debtor, in the bauds of a third person, to the payment of the judgment, where the person having possession of the property asserts no claim to it, and voluntarily assents to such appropriation. And while the judge may order the person having the property, to deliver the same to a receiver, although the person, so having possession claims to own it, the judge has no power to enforce the order as for a contempt, however plain it may seem to him that such claim of ownership is wholly unfounded; but the receiver must resort to the ordinary remedy by action. In so holding we are supported by Union Bank v. Union Bank, 6 Ohio St. 254; Edgarton v. Hanna, 11 Ohio St. 323. Indeed, on principle, as well as by the statute (Rev. Stat. § 4948), the power of the probate judge to imprison in proceedings in aid of execution, should be strictly construed.

’Whether the judge may imprison for failure to comply with such order, where the person having, custody of the property sets up no claim to it, but concedes that it belongs to the judgment debtor, is a question which we need not determine.

Demurrer to return sustained and flai/ntiff discharged.


source: Caselaw Access Project

author: JOHNSON, C. J.

license: Public Domain

text:
    McClelland v. Bishop.
    1. The joint note of husband and wife is the valid obligation of the husband alone, although the wife is not liable at law thereon.
    2. Where such a note is payable at a future time, but at no particular place, and the husband, after making the same, abandons his place of residence, and deserts to some place unknown to the holders, which they cannot after diligent inquiry ascertain, when it falls due, they are excused from making, a personal demand upon him.
    3. In such a case, a personal demand on the wife, with due notice of nonpayment to the indorser, is the exercise of due diligence, and the indorser is liable, though there was no personal demand on the husband.
    4. Where there is a series of negotiable notes in the usual form, for distinct sums of money, payable at distinct and specified times in the future, with a mortgage to secure each, according to its tenor and effect, which contains a stipulation that if default be made in the payment of any one, “then each and all should fall due, and this mortgage to become absolute as to all said notes remaining unpaid at the happening of such default.” Held, that such stipulation relates to the remedy by foreclosure or other proceedings under the mortgage, and upon such default the mortgage may be foreclosed for the whole debt. It is a stipulation for the advantage of the mortgagee, and of full force as to a remedy on the mortgage, but does not operate to vary or extinguish the obligations expressed on the face of the notes themselves for general purposes.
    6. For the purpose of demand and notice to charge indorsers, such notes are to be deemed due according to their terms, irrespective of such stipulation in the mortgage.
    7. The foreclosure of such a mortgage after default of payment of the first notes of the series, and payment thereof out of the proceeds of sale, is not a bar to an action to charge an indorser on one of the series subsequently falling due, who has had due notice of demand and nonpayment.

      ERROR to the District Court of Muskingum county.
    The plaintiffs, as indorsees, sued Eishop, as indorser of a note made by Nancy M. Wiley and J. A. Wiley, of which the following is a copy :
    “$200. Zanesville, Ohio, Jany. 10, 1876.
    “ Five years after date we promise to pay to the order of Henry A. Eishop two hundred dollars, at six per cent, annually. Yalue received. Naijoy M. Wiley.
    J. A. Wiley.”
    The petition alleges an indorsement by Bishop to one Morgan, who indorsed it to plaintiffs before due, for a valuable consideration — that when due, January 13, 1881, it was duly presented to said Nancy M. Wiley, at Guernsey county, Ohio, for payment, which was refused — that said J. A. Wiley was not in said county at the time, but was believed to be at Cincinnati, Hamilton county, Ohio, at so great a distance from said Nancy M. Wiley and from plaintiffs, that it was impossible to make demand on him, of all of which said Bishop had due notice.
    To this three defenses were pleaded:
    1st. That at the time of the execution and delivery of said note, Nancy M. Wiley was the wife of J. A. Wiley, and therefore the note, as to her, was null and void, all of which the plaintiffs knew, when they became its owners, and when they made demand on her for its payment, and that they neglected and failed to make any demand on said J. A. Wiley.
    2nd. That the contract out of which this note arose, embraced four other notes of like amounts, payable in one, two, three, and four years, this being the last of the series payable in five years, to secure which, said makers gave a mortgage on certain real estate, which mortgage contained a stipulation, “ that if default should be made in the payment of any of the foregoing notes, then each and all of said notes should fall due upon the happening of any such default, and this mortgage to become absolute as to all of said notes remaining unpaid at the period of such default.”
    It is then alleged that the note due January 13, 1878 (the second of the series), fell due, and that default in its payment was made, whereby all of the series became due — that on the 12th of Januál’y, one day before such maturity, plaintiffs took an assignment of said notes and mortgage, and that no demand was made for payment of the note which fell due on the 13th, or of the other three notes, though all then became due, nor was any notice of non-payment given until January 13, 1879, when the third note fell due.
    3d. The third defense adopts the allegations of the second, and adds, that all of said notes were given for the purchase money of real estate described in the mortgage, which became due, as one gross sum after January 13, 1878, by reason of the default in the payment of the second note, as before stated, and that on February 8, 1879,' after failure to pay the third notes, the plaintiffs- commenced proceedings to foreclose said mortgage, on said second and third notes, and such proceedings were had, that a decree was rendered, finding the amount due said plaintiff on the said two notes, and ordering a sale of the mortgaged premises, which were afterwards sold, the sale confirmed and the amount of the decree and all costs were paid, by reason of which the note sued on and all right of action thereon, was merged, and is satisfied by said order.
    4th. Denies the amount due and claims a greater credit than is indorsed.
    The plaintiffs demurred to the first defense, but the same was overruled, and they replied, alleging liability of both makers of said note. They admit the makers were husband and wife, but allege as an excuse for failure to make demand on the husband:
    “ Because, several years before the maturity of the note sued upon, thé said J. A. Wiley abandoned and deserted his wife and family, to wit, the said Nancy M. Wiley, and when last heard from was believed to be in Cincinnati, as in the petition alleged ; but plaintiffs did not know on the 13th day of January, 1881, nor could they learn, after diligent inquiry, where the said J. A. Wiley was to be found, nor where his place of residence or business was, nor whether he was in Cincinnati, or in what part thereof ; and these plaintiffs, therefore, say that they were under no obligations to make demand of payment of the said J. A. Wiley.”
    To this reply a demurrer was sustained and plaintiff excepted. On demurrer by plaintiff to the second and third defenses, they were held bad, but as the reply to the first was held bad also, judgment was rendered against plaintiffs, which was affirmed by the district court.
    The issue of fact raised by the further defense was not determined. As the defendant had judgment in his favor, on his demurrer to the reply to the first defense, that issue became immaterial.

      Hollingsworth■ & McDermott, for plaintiffs in error:
    I. As to the sufficiency of demand of payment of one of two joint makers, to bind an indorser. Harris v. OlarTc, 10 Ohio, 5 ; Eastman ,v. Potter, 4 Yt. 313.
    II. Is demand of payment of Mrs. Wiley sufficient, she being a married woman ? If it be true that a married woman is liable on her promissory note only in equitj1', and consequently that, as to her, it is not negotiable paper, still if she be a party to the note, the indorser has pointed her out as the party of whom demánd may be made; and if the note be null and void as to the wife — that is, she being properly not a party to the note, the fact that she has signed it jointly with her husband vests her with an agency which would authorize the holder to make that demand of her which the law requires. But the question of coverture can properly have no place in considering this defense. Each indorsement, it is well settled, constitutes a contract by itself; and the indorser guarantees the validity of the note and its payment at all hazards. The contract of indorsement is to be regarded as a new contract, and the question is.not the competency of the makers, but the competency of the' parties to this new contract, which competency is not disputed in the case at bar. Aymar v. Sheldon, 12 Wend. 439. Approved and followed in Case v. Heffner, 10 Ohio, 180, where this question is thoroughly discussed.
    It is a new and independent contract. Trimble v. Thorne, 16 Johns. 152 ; Allen v. Walker, 2 M. & W. 317 ; Young v. Bryan, 6 Wheat. 146 ; Slocum v. Pomery, 6 Cranch, 221; Lambert v. Oakes, 1 Ld. Raym. 443; 2 Parsons Bills and Notes, 23.
    The indorser is the indorsee’s drawer. 1 Burr. 665. Bishop guaranteed Mrs. Wiley’s competency, and is now estopped to deny it. We had a right to rely on his guarantee and demand payment of her. “ An indorsement is said to imply that all previous parties could do validly what they did ; and that the present indorser has power to make a valid indorsement.” 1 Parsons on Contracts, star page 264. “ It admits the signature and capacity to sign of every prior party.” 2 Parsons Notes and Bills, 25; Smith Merc. Law, 294 ; Cochran v. Atchison, 14 C. L. J. 414; Williams v. Tishomingo San. Ins., 10 C. L. J. 496 ; Weakly v. Bell, 9 Watts, 273 ; Dal-rymyle v. Hillenbrand, 62 N. T. 5 ; Dewey v. Warrener, 71 111. 198 (22 Am. Rep. 91); Bank v. Fearing, 16 Pick. 533; Turnbull v. Boyer, 40 N. Y. 456 ; Yeazie v. Willis, 6 Gray,. 90 ; Bemsen v. Graves, 41 N. Y. 471; Critchlew v. Berry, 2 Cranch, 182 ; Edwards v. Dick, 4 Barn. & Aid. 212. And this though the former indorser or maker be incapacitated by infancy or coverture. 2 Parsons Notes and Bills, 25, and numerous cases; Ballengall v. Gloster, 3 East, 481; Haley v. Lane, 2 Atk. 181; Smith v. Knox, 3 Esp. 46; Bass v. dive, 4 M. & S. 15 ; Brown v. Mott, 7 Johns. 360 ; Erwvn v. Downs, 15 N. Y. 575.
    Wiley having absconded the demand was sufficient. 17 Minn. 209 ; 10 Am. Rep. 161; 15 Am. Dee. 640 ; 1 Parsons on Contracts, 274; 13 Am. Dee. 345 ; 3 Ohio, 309.

      Evans & Evans, for defendant in error:
    I. The rule is well defined, that where there are several promisors of a note, who are not partners, it is necessary that the note should be presented to all, or that due diligence be exercised to make such presentation, before the liability of an indorser can accrue. Parsons on Notes and Bills, 362. True, there is an exception to this rule in Ohio, but how far does this exception extend, and does it reach the case under consideration? In the case of Harris v. Clarke, 10 Ohio, 5, the court held that a demand upon one of three joint and several promisors is sufficient: but we have been unable to find any reported case in which it has been held that a demand upon one of several joint promisors was sufficient; on the contrary we find in the case Greenough v. Smead, 3 Ohio St. 416, 423, that Judge Ranney, in delivering the opinion of the court, substantially lays-down the rule that in the case of joint makers, a demand should be made of each, in order to charge an indorser, and further say that they feel no hesitation in saying that the rule adopted in the case of Harris v. Clark, 10 Ohio, 5, should be confined to the precise state of facts upon which the decision was made.
    A demand upon one of several partners is clearly sufficient, and the court in that case considered the several “ makers of a joint and several promissory note in the light of partners in that particular transaction.” But certainly that principle could have no application after the abandonment of his wife, and joint obligor on the note, by J. A. Wiley. But demand upon the wife was no demand whatever. Avery v. Van-Sickle, 35 Ohio St. 270.
    II. The mortgage and notes constituted, and were intended to constitute, one agreement or contract, and should be so construed- and considered (Chitty on Contracts, *23), and it is a proposition of law, so clear, certainly, as to require no citation of authorities to sustain it, “ That parties who are competent to contract, and who do contract, are, together with their privies, bound by the terms of the contract.” In the case at bar, the contract specifically provides, that in the event of default of payment of any one of the notes given under and constituting a part of the contract, all the notes remaining unpaid should then become due and payable. Now it is conceded that the note, which, by its face, fell due January 13, 1818, was at that time, together with the mortgage, and all the other unpaid notes of the said series of notes, secured by the said mortgage, in the hands of the plaintiffs, and they were: necessarily cognizant of the terms of the contract, and, as privies of the payee, bound thereby. It is also conceded that said note, falling due January 13,1878, remained unpaid until February 8, 1879, and that no demand was made, or notice of non-payment given to this defendant, for a long period of time, to wit: until January 13, 1879. This defendant, under those circumstances, had the right to believe that the note falling due January 13, 1878, had been paid at maturity, and to govern himself accordingly, and he was discharged from any and all liability on said note.
    If the proposition be true, that all the notes remaining unpaid on the 13th day of January, 1878, became due on default of payment of the note, which, by its face, fell due on that day, as provided in the contract, then it is clear that the failure of the plaintiffs, as holders of the mortgage and of the notes thus falling due, to make demand of payment of said notes, and give notice of the non-payment of the same to this defendant, as indorser, operated as a discharge from his liability as such indorser. Smith Merc. Law, 246, 247; Chitty on Bills, 259, and note “ I ” on p. 260; 10 Ohio, 5; Story on Bills, §§ 324, 325; 1 Parsons Notes and Bills, 442; Mallon v. Stevens, et. al., Am. Law Record, May, 1881, page, 702 ; Blake v. Lawrence, 4 Esq. 147; 4 Ad. & El. N. S. 519; Carlon v. Kenealy, 12 M. & W. 139.
    III. As to bar see Althof v. Fox, Am. L. Rec. December, 1880, p. 380; Burritt v. Belfy, Am. L. Rec., August, 1881.
   JOHNSON, C. J.

I. The error assigned is, that the courts below erred in rendering a judgment in favor of Bishop, on the facts stated in the petition, the first defense and the reply thereto.

These facts are that plaintiffs are the indorsees for value, and before due, of a joint negotiable note of husband and wife, of which fact they had knowledge, that several years before it became due, the husband abandoned and deserted the wife ; that when last heard from, he was believed to be in Cincinnati; but plaintiffs did not know, on the day the note matured, Jan-nary 13, 1881, nor could they learn after diligent inquiry, where he was to be found nor where his residence or place of business was, and hence they were under no obligations to make demand on him.

The demand on the wife in Guernsey county, and her refusal to pay, and due notice thereof, is admitted, so the question is, was the indorser discharged by the failure to make demand on the husband 2

This question may be considered : first, as unaffected by the coverture of Nancy M. Wiley, that is, treating the note as the valid joint obligation of both makers, and second, as affected by such coverture, and therefore the valid obligation of the husband alone.

First. If this note be regarded as the valid obligation of both.

The general rule is, that in case of a joint note, when the makers are not partners, demand must be made upon both, to charge an indorser.

In this state, in Harris v. Clark, 10 Ohio, 5, it was .held that a demand on one of three joint and several makers, with notice, was sufficient. In this case no excuse was offered for a failure to make demand on'the other makers. Hitchcock, J., said:

If we were to hold a demand must be made upon all the makers, in order to charge the indorser, such decision would operate to discharge many, if not all, indorsers of notes of a character similar to the one now under consideration. It will be seen that the note is not payable at any particular place; if it were, a demand at the place would be sufficient. But as it is, a personal demand was necessary. Now, suppose the makers resided in different states, or in different and distant parts of the same state, how could demand be made of all, so as to charge an indorser ? It must be made on the day the note falls due, or, where days of grace are allowed, upon the last day of grace. Will it be said that demand can be made at different and distant places on the same day through the agency of letters of attorney ? 1 believe such a practice lias not been beard of. At least, we have found nothing like it in the books.”
“But it is said that an indorser is to be considered in the light of security ; that his undertaking to pay- is only in the event of a failure of the maker ; and that although one of the makers may’- refuse, still another, if requested, might pay. There is force in this reasoning. When, however, it is considered that an indorser is immediately notified of the fact of non-payment, and that the object of this notice is that he may procure an indemnity from those whose note he has indorsed, it is not perceived that he is in any great danger of loss in consequence of a failure to make demand of all the makers. He can at once procure his indemnity, if it can be had, or he may himself pay off the note, and immediately proceed against the makers.”

If this be sound in a case of a joint and several note, where no excuse is offered for the failure of the holder to máke demand on all, a fortiori it must be so, when the holder, after diligent inquiry, cannot find one of the makers. • •

This note was dated at Zanesville, Ohio ; whether the makers then resided there does not appear. It had no place of payment. When due, the wife resided in Guernsey county. Several years before maturity, Wiley abandoned and deserted his wife. When the note became due, the plaintiffs did not know, nor after diligent inquiry could they learn his whereabouts or residence. It was impossible to present it to both makers on the same day. The admitted facts show due diligence, and when this is shown, in case of a note payable at no particular place, and when the maker has abandoned his residence and gone to parts unknown, it is a sufficient excuse for non-presentment to him. 1 Parsons on N. & B. 442, 448, note (d.)

Second. The fact that one of the makers was a married woman cannot vary this rule. If, as is claimed, the note was void as to her, still it was the note of the husband and the same rule would apply. The excuse for failure to make a personal demand on him is equally good whether it be regarded as his individual note or as a valid joint note.

By the demand on the wife at her residence in Guernsey county, and notice to the indorser, the latter had all the benefit of such notice. The law merchant does not require impossibilities. All that it requires is due diligence to find the maker. The demurrer to the reply admits such diligence. The indorsement by Bishop implied that the makers were both competent to contract. It admitted the signature and capacity of Nancy M. Wiley to make the note. As against the indorser this is to be regarded as the valid joint note of both makers, and the fact that Mrs. Wiley was the wife of her co-maker, of which plaintiffs had knowledge, can make no difference as to the liability of the indorser to the indorsee. He stood as the drawer of a new bill.

II. This conclusion would reverse the judgment, unless the court below erred in sustaining a demurrer of plaintiff to the second and third defenses. If either of these was a bar to the action on this note! then this judgment for defendant should be affirmed, though for a different reason than was given by the court.

The second defense is, that this fifth note of the series, which, by its terms, fell due Janua/ry 13, 1881, became, in fact, due January 13, 1878, by reason of a stipulation contained in the mortgage made to secure the series, that if default be made in the payment of any of the prior notes, then all should fall due and the mortgage was to become absolute as to all of said notes remaining unpaid.”

The notes themselves are, on their face, subject to no such stipulation. They purport to be so many independent obligations, whose maturity depends on the terms therein stated, to wit, payable in one, two, three, four and five years. These notes are of themselves complete. 'They give no right of action thereon until after due. Por the general purj>oses for which negotiable paper is made, their effect must be determined by their expressed terms. They pass by indorsement before due to bona fide indorsees for value, independent of the mortgage, and the holder’s rights and remedies thereon are unaffected by the mortgage, unless he has notice of some valid defense thereto, arising out of the mortgage. If these plaintiffs bad become holders of these notes without knowledge of the mortgage or without an assignment thereof to them, their equitable interest in the mortgage would have given them no right to sue at law on all the notes upon default as to one note. Having an equity merely in the mortgage this stipulation would not be a covenant in their favor, but only in favor of the mortgagee.

Thus a covenant in a mortgage to trustees to secure bondholders, that upon default to ¡>ay interest, the bonds shall become due, if not inserted in the bonds, can only be taken advantage of by the trustees for the foreclosure of the mortgage. Mallory v. West Shore R. R., 35 N. Y. Sup. Ct. 174.

The bona fide holder of these notes for value, acquired all the rights of indorsees, and could, at their election, sue at law. By taking an assignment of the mortgage made to secure them, they acquired a right in equity to foreclose according to its terms. It was therein stipulated that upon default in paying any note all should become due, “ and this mortgage is to become absolute as to all said notes remaining unpaid.” This clause is for the advantage of the mortgagee or his assignee. It should be construed with reference to the subject matter and its evident purpose, namely, to provide but for one suit in foreclosm’e. In thus limiting its purpose, we give it full force, without rendering null the express stipulations of the notes. The terms of each contract can stand without rendering the other nugatory. If this stipulation was contained in the notes as well as in the mortgage, then both could be enforced without either destroying the other, but if this stipulation in the mortgage varies the obligations of the notes, except for purposes of foreclosure and other equitable relief, then we defeat the obligation as expressed in the notes.

This cannot be a sound conclusion. In Noell v. Garnes, 68 Mo. 649, where this conclusion is reached, the court basis its judgment on the ground that instruments executed at the same time, with regard to the same transaction, are, in the eye of the law, one, and must be read and construed together as such. 2 Smith Lead. Gas. 259. This admitted principle is illustrated in many ways, and by numerous cases, but no where is it applied to nullify one contract, by another made at the same time, relating to the same transaction, where the stipulations of each relate to different things, and both can stand together, and each be applied to its proper subject-matter.

Thus in Morgan v. Martin, 32 Mo. 438, there was a deed of trust to secure certain notes. It contained a provision somewhat similar to the one at bar, and the question was as to the discharge of a surety. It was said the deed was merely collateral, and was not intended to operate as an extinguishment of the contract expressed in the notes, and did not enlarge or diminish the liabilities thereon. It is said, “ the notes could not, on the happening of such a contingency, mature for general purposes.”

An attempt is made in 68 Mo. to limit this principle to cases where the mortgage is given subsequently to the notes, but obviously this distinction does not rest upon sound reasoning. In this conflict between 32nd and 68th Mo. we think the former rests upon firmer ground

While it is true that all separate writings, made at the same time, and relating to the same transaction, are in the eye of the law as if embodied in one, yet it is not true, that when, in one contract, evidenced by a single paper, or in several, relating to the same transaction, containing stipulations relating to matters in their nature separate, either should be construed so as to extinguish the other. If the construction claimed for the mortgage be given, it would extinguish the terms of the notes. As well might the stipulations of the note extinguish those in the mortgage. The stipulation in the mortgage should be construed as providing a remedy on the mortgage, and that so far as foreclosure proceedings are concerned, the notes, for that purpose are due, but for general purposes, the obligations on the notes, are to be determined í>y their own expressed terms. In this way both contracts can stand and be fully enforced according to the manifest intention of the parties.

III. The third defense is, that after the second and third notes became due, and before the fourth and fifth matured, the plaintiffs foreclosed on those then due, and sold the property, out of which they were paid, whereby all right of action on the fourth and fifth notes is gone.

This claim rests upon the idea that by reason of this clause in the mortgage, all the notes became due, and the several notes became one entire demand, and that this action to foreclose for part, was a bar to an action for the remaining part of this'single demand.

This assumes that all the notes became due for all purposes, as well as for the purposes of foreclosure merely. This demand became entire for the purposes of a remedy on the mortgage merely, and if this was a second proceeding to foreclose to pay the later notes, the point would perhaps be well taken, but as it is an action at law on the note, it is not.

Even if all the notes had been embraced in the foreclosure proceeding, and the property proved insufficient to pay all, it would be no bar to this action at law on the note.

Judgment reversed, the demurrer to plaintiffs reply is overruled and cause remanded for further proceedings.


author: McIlvaine, J.

text:
    Biteler v. Baldwin.
    In order to preserve tlte lien of a chattel mortgage beyond the first year the filing of the verified statement and copy required by section 4155 of the Revised Statutes, must be done during the thirty days immediately preceding the expiration of the year. The refiling of the mortgage with such statement before the commencement of the thirty days is not sufiicient.
    MotioN for leave to file a petition in error to the district court of Tuscarawas county.

      T. D. Healey and A. L. Neeley, for the motion.
   McIlvaine, J.

On February 17, 1879, Reese L. Baldwin executed a chattel mortgage to Daniel Biteler, to secure the payment of money, and on the same day Biteler duly filed the same in the office of the township clerk, with a statement thereon, under oath, of the amount of the claim so secured, and that it was just and unpaid. On September 16,1879, Biteler made another affidavit upon said chattel mortgage, similar to the first affidavit, and refiled said mortgage with the second affidavit thereon, with the' township clerk. On February 28, 1880, Reese Baldwin purchased the chattels so mortgaged to Biteler, from Reese L. Baldwin, in good faith and without actual notice of said chattel mortgage, and on June 8, 1880, sold the same to one Hines and took a chattel mortgage on the same property, to secure the purchase-money; which mortgage, duly verified, was on the same day duly filed with the same township clerk. As between these mortgages the district court gave priority to the second, which ruling Biteler now assigns for error.

By section 4154, Revised Statutes, the mortgagee in a chattel mortgage, given to secure the payment of money, is required, before the mortgage is filed, to state thereon, under oath, the amount of the claim and that it is just and unpaid. And section 4155 provides, “ Every mortgage so filed shall be void, as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith, after the expiration of one year from the filing thereof, unless, within thirty days next preceding the expiration of the said term of one year, a true copy of said mortgage, together with a statement, verified as provided in the last section, exhibiting the interest of the mortgagee in the property at the time aforesaid, claimed by virtue of such mortgage, is again filed in the office where the original was filed.” The claim of plaintiff in error is, that the verification and refiling of his mortgage on September 16, 1879, was equivalent to an original filing, and thereby the lien of his mortgage became valid, as against subsequent purchasers in good faith, for one full year after the date of refiling; and, in support of this claim, relies on Swift v. Hart 12 Barb. 530. This ease holds, under a statute similar to ours, that a verification and refiling, after the expiration of a year from the original filing, revives the lion as against subsequent purchasers. This doctrine was questioned in the subsequent case of Newell v. Warner, 44 Barb. 258.

It is, however, expressly decided, in National Bank v. Sprague, 20 N. J. Eq. 18, that, in order to preserve the lien of a chattel mortgage beyond the first year, the refiling a copy required by law must be done during the thirty days immediately preceding the expiration of the year. A refiling before the commencement of the thirty days is unavailing.

As an original question upon the construction of our own statute, we think the court below was right.

The mortgage of plaintiff in error, when filed on February 17, 1879, became a valid lien, as against Reese Baldwin, purchaser from Reese L. Baldwin, for one year.

By the plain words of the statute, that mortgage became void as to the purchaser after the expiration of one year from the date of its filing, unless within thirty days next preceding the expiration of the year, it was re-verified and re-filed, as provided by the statute. There was no such re-verification and refiling within said thirty days. The verification and refiling on September 16, 1879, had no effect under the statute. Such refiling was not intended by the parties, nor did it have the effect, in law, of destroying the lien which commenced on February 17, neither did it create a new or additional lien, under the same instrument, on the same property, for the same claim.

Motion overruled.


text:
    Lima v. Cemetery Association.
    1. In a general sense, a tax is an assessment, and an assessment is a tax; but there is a well-recognized distinction between them, an assessment being confined to local impositions upon property for the payment of the cost of public improvements in its immediate vicinity, and levied with reference to special benefits to the property assessed.
    2. A municipal corporation insisting on the right to impose an assessment, should be able to show that such power has been cleaily granted to it by statute; but authority being shown, in general terms, to make the assessment, whoever insists that his property is exempted from the burden will bo required to support his claim by a provision equally clear.
    3. An incorporated cemetery association is not relieved from an assessment for a street improvement by a statutory provision exempting its lands from taxation, such exemption being regarded as confined to taxes as distinguished from local assessments.
    4. While the lands of an incorporated cemetery association, so far as exempted, cannot be sold to pay an assessment for the improvement of a street, the municipal corporation may enforce the assessment by such remedies as the statute and courts of equity afford.
    ERROR to the Court of Common Pleas. Reserved in the District Court of Allen county.
    In 1882, Lima, a city of'the fourth grade of the second class (Rev. Stats. § 1518), made an assessment by the feet front, amounting to $318.16, on real estate within the city, belonging to the Lima Cemetery Association, a company incorporated under the laws of this state. Rev. Stats. §§ 3571-3586. The real estate abuts upon an alley in the city, and the assessment was made in due form by the city for grading and paving the alley.
    In an action in the court of common jileas of Allen county, under Rev. Stats. §§ 2286,2287, to enforce the assessment, the association answered, that the lands “are, and for a long time, to wit, before the making of said improvement, have been-used exclusively as a grave yard and ground for burying the dead, and that said lands are not held with a view to profit, or for the purpose of speculating on the sale thereof, and that said lands are not taxable, and that the same are not on the tax duplicate for taxation.”
    The court overruled a demurrer to the answer, and subsequently dismissed the petition ; and a petition in error having been filed in the district court, that court reserved the cause for decision by this court.

      D. J. Gable, for plaintiff in error.

      J. F. Brotherton and 1. Pillars, for defendant in error.
   Okey, J.

A municipal corporation insisting upon the right to impose an assessment, should be prepared to show that such power has been clearly granted by statute; but, authority for such purpose being shown, in general terms, whoever insists that his property is exempted from the burden, will be required to support his claim by a provision equally clear. Hero authority to levy the assessment is clearly granted in general terms (Rev. Stats. § 2264), and whether it is shown by the Cemetery Association that its property is exempted from the assessment, is the only question for determination.

1. It is claimed that such exemption is implied from the provision limiting the assessment to twenty-five per cent, of the value of property as assessed for taxation (Rev. Stats. § 2270), inasmuch as the property of the association cannot be assessed for taxation (Rev. Stats. §§ 2732, 3571, 3578). This objection was held to be fatal in First Pres. Church v. Fort Wayne, 36 Ind. 338; cf. Matter of Hebrew Society, 70 N. Y. 476. Rut the difficulty encountered in the Indiana case is obviated in this state by Rev. Stats. § 2269, in which the course to "be pursued by council, in such a case, is pointed out.

2. The constitution provides: “ Laws shall be passed taxing by a uniform rule ... all real and personal property, according to its true value in money; but burying .grounds . . . may, by general laws, be exempted from taxation.” Art. 12, § 2. And by Rev. Stats. §§ 2732,3571, 3578, as we have seen, burying grounds — cemeteries—are exempted from “ taxation.” It is insisted that this exemption embraces assessments. True, in a general sense, a tax is an assessment, and an assessment is a tax, but there is a plain distinction between them. The constitution provides : “ The general assembly shall provide for the organization of cities and incorporated villages by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power.” Art. 13, § 6. In Hill v. Higdon, 5 Ohio St. 243, Ranney, J., in referring to the insertion of the word assessment in the organic law, by the convention which framed that instrument, took occasion to say: “This power had for many years been in constant and active exercise in every part of the state, and was perfectly understood by every member of the convention. The popular as well as legal signification of this term had always indicated those special and local impositions upon property in the immediate vicinity of an improved street, which were necessary to pay for the improvement, and laid with reference to the special benefit which such property derived from tlie expenditure of the money. They had always differed widely from the ordinary levies made for the purposes of general revenue.”

There is nothing then, in the constitution forbiding either the assessment of such property or its exemption from assessment. The words of the constitution authorizing the exempt tion, assuming that they extend to an assessment, are strictly permissive. May, in this case, is not to be read shall. By the general terms of section 2264, the property of the association is within the assessment, and it is simply a question of construction whether it is taken out of the general words by the other provisions. But applying the well settled rule for the construction of provisions exempting property from such burdens, that is, that they are to be strictly construed (Cincinnati College v. State, 19 Ohio, 110; State v. Mills, 34 N. J. L. 177), we are required by the clear weight of authority to hold, that the exemption in our statutes of burying grounds from taxation (Rev. Stats. §§ 2732,3571,3578), has relation to taxation for revenue purposes, and does not extend to an assessment for a local improvement like that in question here. Under similar provisions such is the holding in New York: Buffalo City Cemetery v. Buffalo, 46 N. Y. 503, 506, cited in Roosevelt Hospital v. Mayor, 84 N. Y. 108, 115; People v. Davenport, 91 N. Y. 574,586; Reclamation Dist. v. Goldman, 61 Cal. 205, 208. In Maryland: Alexander v. Baltimore, 5 Gill, 396; Baltimore v. Greenmount Cemetery, 7 Md. 517. In Massachusetts : Boston, etc., Society v. Boston, 116 Mass. 181; s. c., 17 Am. R. 153. In New Jersey: Paterson v. Society, etc., 24 N. J. L. 385; State v. Newark, 27 N. J. L. 185; State v. Newark, 35 N. J. L. 157. The latter case, though reversed in 36 N. J. L. 478, is still authority upon the point to which it is here cited (State v. Elizabeth, 37 N. J. L. 330), and Hoboken v. North Bergen, 43 N. J. L. 146, is consistent with the preceding cases. In Pennsylvania: Northern Liberties v. St. John's Church, 13 Pa. St. 104; Pray v. Northern Liberties, 31 Pa. St. 69; Crawford v. Burrell Tp., Greensburgh v. Young, 53 Pa. St. 219, 280. The later decisions are not inconsistent with the cases cited. In Olive Cemetery Co. v. Philadelphia, 93 Pa. St. 129, it appeared that by the charter of the cemetery company the property was “exempt from taxation excepting for state purposes.” The court properly said that “ the rule is well settled that an exception in a statute excludes all other exceptions. Miller v. Kirkpatrick, 5 Casey, 226.” In Virginia : Orange and A. R. Co. v. Alexandria, 17 Gratt. 176. In Rhode Island: Second Univ. Sc. v. Providence, 6 R. I. 235; Matter of College Street, 8 R. I. 476; Beals v. Rubber Co., 11 R. I. 381, s. c., 23 Am. R. 472. In California: Emery v. Gas Co., 28 Cal. 345; Reclamation Dist. v. Goldman, supra. In Indiana: Palmer v. Stump, 29 Ind. 329; First Pres. Church v. Fort Wayne, supra; Marks v. Trustees, 37 Ind. 155. In Illinois: Illinois and M. Canal v. Chicago, 12 Ill. 403; Peoria v. Kidder, 26 Ill. 351; Pleasant v. Kost, 29 Ill. 490; People v. Graceland Cemetery Co., 86 Ill. 336. In Iowa: Sioux City v. School District, 55 Iowa, 150. In Michigan: Leefevre v. Detroit, 2 Mich. 586. In Kentucky: Broadway Bapt. Church v. McAtee, 8 Bush, 508; cf. Louisville v. Nevin, 10 Bush, 549. In Kansas: Paine v. Spratley, 5 Kansas, 525. In Connecticut: Bridgeport v. Railroad, 36 Conn. 255. In Louisiana: Crowley v. Copley, 2 La. Ann. 329; Lafayette v. Male Orph. Asylum, 4 La. Ann. 1; Yeatman v. Crandall, 11 La. Ann. 220; Rooney v. Brown, 21 La. Ann. 51. In Missouri: Lockwood v. St. Louis, 24 Mo. 20; St. Louis Public Schools v. St. Louis, 26 Mo. 468; Sheehan v. Good Samaritan Hos., 50 Mo. 155; s. c., 11 Am. R. 412. In Ohio: Armstrong v. Athens Co., 10 Ohio, 235; Cincinnati College v. State, supra; North. Ind. R. Co. v. Connelly, 10 Ohio St. 159; cf. Kendrick v. Farquhar, 8 Ohio, 189; Will v. Higdon, supra; Matheny v. Golden, 5 Ohio St. 361; Gerke v. Purcell, 25 Ohio St. 229; Humphries v. Little Sisters, 29 Ohio St. 201; Cleveland Library Association v. Pelton, 36 Ohio St. 253. And see generally as to cemeteries, Price v. Methodist Church, 4 Ohio, 515; Hullman v. Honcomp, 5 Ohio St. 237; 12 Moak’s Eng. Reps. 665; 2 Wait’s Act. and Def. 127, 133 ; 1 Am. and Eng. Corp. Cas. 267, 512; 2 Bishop’s Or. L. §.i 1188, 1190. The sole exception to the cases sustaining such assessment as not within an exemption from taxation, if indeed an exception (cf. Hale v. Kenosha, 29 Wis. 599; Dalrymple v. Milwaukee, 53 Wis. 178), is found in Wisconsin.

3. It is provided that the association may hold “not exceeding one hundred acres of land, which shall be exempt from execution, ... if used exclusively for burial purposes, and in no wise with a view to profit.” Rev. Stats. § 3571. It does not appear how much land this association has, but let it be assumed for the present that the quantity is less than one hundred acres. We agree that this' exemption is to be taken in its most comprehensive sense, and hence there cannot be a sale of such lands under any legal process whatever. In view of this it has been thought that Louisville v. Nevin, supra; s. c., 19 Am. R. 78, is an authority for holding that the exemption defeats this assessment. That was an action to enforce an . assessment on a lot in Jefferson street, Louisville, for regrading and repaving the sidewalk along the front of the lot. The judge delivering the opinion stated tbe fact to be, that the lot was conveyed to the city in 1834, to be held in trust for the use of the Roman Catholic congregation in Louisville, as a burying ground, and has been filled with graves for more than twenty years, and has never been used since 1834 for any other purpose than a graveyard ; and it is admitted that no revenue is derived from it, and that the Rt. Rev. Bishop MeClosky, who now holds the title as trustee, has no funds in his hands belonging to the trust with which'to pay the assessment.” The legislature had not granted authority to remove the bodies, nor had the city assumed to exercise such authority, and the court held that there was no authority to enforce the assessment in that suit. And see Matter of Mayor, 11 Johns. 77, and Albany Street, 11 Wend. 150. But here, for aught that appears in the record, the association has funds to pay the assessment, and indeed for aught that appears it has lands not occupied by graves exceeding one hundred acres in quantity. It does not appear that the association is without the means to pay the assessment, and certainly we could not assume that it will remain without funds. Although the association is not strictly one for mere profit, nevertheless it is empowered by the statute to do, at its own expense, not only the very work for which it is here in part assessed, but it may improve and ornament its grounds in such way as to its officers may seem proper. While the cemetery lands, assuming them to be within the limitation, cannot be sold on any legal process, we think the city may, nevertheless, be able to collect the assessment, if indeed occasion should arise for resorting to further proceedings in this case ; for the statute plainly authorizes proceedings both at law and in equity (Rev. Stats. §§ 2286, 2287), and payment, if not voluntarily made, could doubtless be secured by the appointment of a receiver, by sequestration, or by such other appropriate remedy as equity may afford (2 Dillon’s Mun. Corp. § 822), without in any way disturbing the resting place of those reposing in “the city of the dead.”

Judgment reversed.


author: Follett, J.

text:
    The State ex rel. v. Johnson.
    1. The commission, created by “ An act to provide for additional accommodations for the insane,” passed April 18, 1888 (80 Ohio L. 181), was authorized to adopt plans limited by the act, but had no power to adopt plans which provided for the expenditure of a sum that exceeds $500,000.
    2. After the adoption of valid plans provided for by that act, the further proceedings in erecting the building (including giving public notice for bids, etc.), are governed by the statutes relating to public buildings. Title 6, Chapter 1.
    8. Until proper plans are adopted, no valid notice for bids can bo given, and no valid contracts thereon can be made.
    PetitioN for Mandamus.
    On April 18, 1883, the general assembly passed “An act to provide for additional accommodations for the insane of the state,” 80 Ohio Laws, 181.
    “Section 1. That there is hereby appropriated from the general revenue fund the sum of two hundred thousand dollars ($200,000) for providing accommodations for the care of the insane of the state not now provided with state care.”
    “ Section 2. The governor, attorney-general, secretary of state, auditor of state, and Roeliff JBrinkerhoff, are hereby appointed a commission to determine upon the manner in which said provision for the care of the insane shall be made ; and in making said provisions for the care of the insane, said commission is authorized to adopt flans which shall provide for the expenditure of .a sum not to exceed five hundred thousand dollars, which shall include heating apparatus and radiators all complete ; also gas works with gas fixtures, water-works and sewerage, so that the building or buildings shall be complete in every respect, ready for the reception of patients, and the same to be fire-proof; and the appropriation named shall also include the purchase of land.”

      “ Section 3. If the said commission shall select any site or sites located upon the grounds of any asylum or asylums for the insane in the state, the trustees of such asylum or asy-luras for the insane shall be and are hereby empowered to proceed with the erection of said buildings,” etc.
    “ Section 4. If the said commission shall select a site remote from either of the asylums for the insane, then the governor shall appoint five trustees, who shall proceed with the erection of the building as provided by law, which building shall be fire-proof as far as practicable, with a capacity of not less than six hundred and fifty inmates.”
    The commission organized, and proceeded to discharge 'their duties under the law. After examination and discussion of the subject, the commission decided to adopt the “ Cottage ” plan of buildings; and architects were employed to prepare plans and specifications for such buildings.
    The commissioners of Lucas county offered to the state a deed for a tract of land, near the city of Toledo, of over one hundred acres as a donation, if the asylum should be located and erected thereon, and the offer was accepted and that site selected, and the deed was delivered.
    The architects reported their plans and specifications to the commission ; and the estimated cost of the buildings thus provided for in the plans exceeded the sum of five hundred thousand dollars.
    The commission, believing it to be for the best interests of the state to have the plans thus made, adopted, and that any diminution in the size or quality of the buildings would be detrimental to their usefulness, and, acting under the advice of the attorney-general, who was of their number, decided to advertise for proposals for doing the work and furnishing the materials necessary in the completion of the buildings. They believed — and the result proved they were right — that responsible bids, accompanied with good and sufficient bonds, might be obtained, which wmuld demonstrate that the asylum thus planned, could be completed within the appropriation.
    They therefore caused notice to be published in the newspapers, at the various points in the state required by law, inviting sealed proposals for doing the work and furnishing the material. Blank bids were prepared and furnished by the architects to all who called for them, and, at the time named in the advertisement, some thirty bids were filed with the commission. Each bid was, under the notice, to be accompanied by a good and sufficient bond, in an amount equal to at least 10 per cent, of the amount of the bid, conditioned that if the bidder was awarded a contract he would enter into it and furnish a good bond, with approved surety, in an amount equal to 50 per cent, of the gross contract price, conditioned for its faithful performance, etc.
    The relators were awarded by the commission, a contract for a part of the work, the price to be paid them being about three hundred and thirty thousand dollars. The commission awarded contracts to other parties. The relators made subcontracts for some of the work and materials, and furnished and placed upon the ground selected, a part of the materials to be used under their contract. The commission finally adopted and approved the plans, specifications and contracts so made.
    In January, 1884, the governor appointed the defendants trustees, as provided in section four of the. act. These trustees organized at once, and entered upon their duties, and refused to recognize the validity of the relators’ contract, or to make a contract on relators’ bids. This action is brought to compel the trustees to carry out relators’ contract with the commission, or that the trustees be commanded and compelled to award and deliver to relators, upon their bids, a contract in due form of law ; and the relators aver all the foregoing facts.
    The defendants demur to the petition for the reason that it does not state facts sufficient to constitute a cause of action, or to entitle the relators to the relief therein prayed for.

      Chas. H. Scribner and John II. Doyle, for plaintiff.

      James Lawrence, attorney-general, for defendants.
   Follett, J.

Should the demurrer be sustained? This depends upon the rights of the relators as shown by the petition. Relators claim they have the right to compel the defendants, either: 1. To carry out the contract relators made with the commission created by section two of the act of April 18, 1883 ; or, 2. To accept of bids made by relators to the commission, and to enter into a contract on the basis of the bids. The character of these claims will apj)ear by examining the powers and acts of the commission.

In tiie care and cure of the insane, Ohio was among the foremost, and recent investigations and experience had shown that the best results are obtained by suitable persons using the best methods in asylums properly located and built as to.site and arrangements. To secure this, and to obtain the benefit of wise and experienced specialists, this commission was created and given special powers.

As is seen by examining the act, the commission was to determine upon the manner in which said provisions- for the insane shall be made etc. The commission, in determining this, determined that provision should be made for using the most advanced methods, and that there should.be provided buildings on the “ Cottage ” plan.

This important part of the work having.been determined, a site remote from either of the asylums for the insane,” was selected by the commission.

Section four of the special act provides, “ If the said commission shall select a site remote from either of the asylums for the insane, then the governor shall appoint five trustees, who shall proceed with the erection of the building as provided by law, which building shall be fire-proof as far as practicable, with a capacity of not less than six hundred and fifty inmates.” Section two says, “ said commission is authorized to adopt plans which shall provide for the expenditure of a sum not to exceed five hundred thousand dollars,” etc.

The special act repeals no part of the statutes on public buildings, but gives the commission a part of the labor and responsibilities of the trustees in other cases.

By Revised Statutes, title VI., chapter 1, section 782 and following, careful and specific directions are given as to the erection of public buildings. Some of the directions are as follows: <! Section 782. The directors, trustees, commissioners, or other officer or officers, to whom is confided by law the duty of devising or superintending the erection, alteration, addition to, or improvement of, any state institution, asylum, . . erected, or now being erected, or to be erected 'by the state, before entering into any contract for the erection, . . . or for the supply of materials therefor, the aggregate cost of which erection, . . and materials therefor, exceed the sum of three thousand dollars, shall make or procure to be made, a full, complete, and accurate plan or plans of such institution, asylum, . . in all its parts, showing all the necessary details of the work, together with working plans suitable for the use of the mechanics or other builders during the construction thereof, so drawn and represented as to be plain and easily understood; and, also, accurate bills showing the exact amount of all the different kinds of materials necessary in the erection thereof, . . to accompany said plan or plans; and, also, full and complete specifications of the work to be done, showing the manner and style in which it will be required to be done, . . . and to make, or cause to be made, a full, accurate, and complete estimate of each item of expense, and the entire aggregate cost of such institution, asylum, . . when completed.” Section 783 directs that when such plans and estimates, etc., are approved, a copy thereof shall be deposited and safely kept in the office of the auditor of state.”

“ Section 784. After sueh plans, descriptions, bills of materials, and specifications and estimates as are in this chapter required, are made and approved, the directors, commissioners, trustees, or other officer or officers to whom the duty of devising and superintending the erection, . . shall give public notice of the time and place, when and where sealed proposals will be received, for the performing the labor and furnishing the materials necessary to the erection of such institution, asylum, . . and a contract or contracts, based on such sealed proposals, will be made.” The commission, to carry out and make sure the determined “ manner ” of the provisions, made plans in accordance with section 782, except that these plans provided for the expenditure of a sum that did exceed $500,000. As is shown by section two of the special act, such plans tbe commission was not authorized to adopt, and could not adopt, but could only adopt plans which provide for the expenditure of a sum not to exceed $500,000. When proper plans are made and adopted, the work of the commission is ended, and the trustees should proceed with the erection of the building as provided by law. The commission had not adopted plans with estimates according to law, the notices were not authorized, and the bids and contracts do not entitle relators to the relief prayed for.

The demurer is sustained, and the petition is dismissed.


text:
    McComb v. Thompson.
    1. When a transcript of a judgment rendered by a justice of the peace is duly filed in the office of the clerk of the court of common pleas, such judgment becomes a lien, as against the debtor, on the real estate of such- judgment debtor within the county.
    3. Such lien does not become lost or removed from that part of the real estate thereafter set off as a family homestead, by the assignment and use of such a homestead.
    3. The right to have and hold a homestead is a personal privilege which cannot be conveyed to another, and is lost by neglect or refusal to claim it, or by abandonment of the homestead.
    4. When the rights of homestead are removed, liens on such property may be enforced by due process of law.
    Error to tbe District Court of Allen county.
    Joseph C. Thompson, one of the defendants in error, filed liis petition in the court of common pleas of Allen county, setting up in substance, that on October 5, 1878, he recovered a judgment before a justice of the peace in Ottawa township, Allen county, Ohio, against William McComb, Jr., and that on said October o, 1878, a transcript of said judgment was filed in the office of the clerk of the court of common pleas of Allen county, and entered on the execution docket.

      That at the time of the filing of said transcript in the office of the clerk of said court, and the entering of the same upon said execution docket, the said William McComb, Jr., was the owner in fee simple of certain real estate. situated in Allen county. That on the 7th day of May, A. D. 1880, William McComb, Jr., and Frankie E. McComb, his wife, sold and conveyed the said premises to Joseph W. Satterthwait, who is now the owner of the same, subject to the lien of the plaintiff thereon.
    It is further averred that on the 15th day of August, A. D. 1880, he caused an execution to issue from the court of common pleas of Allen county, on the judgment aforesaid, and on the same day said execution was levied on the real estate described.
    The other defendants in error were made defendants, claiming an interest in, or as having liens upon the premises.
    The plaintiff below prays that the conveyance of the premises from William McComb, Jr., and wife, to Joseph Satterthwait, be set aside, and the premises ordered to be sold to satisfy his judgment against William McComb, Jr.
    William L. Porter, one of the defendants below, and a defendant in error here, filed an answer and cross petition, setting up, that on October 4, 1878, he recovered a judgment before a justice of peace, of Allen county, against William McComb, Jr., and that on the same day he filed a transcript of the judgment in the office of the clerk of the court of common pleas of Allen county, and the same was entered on the execution docket.
    He then avers: “ That at said date (the filing of the transcript), and for a long time prior thereto, the said William McComb, Jr., was the owner in fee simple of the premises in the plaintiff’s petition herein described. .
    “ That said William McComb, Jr., with his wife, Frankie E McComb, on the 7th day of May, 1880, sold and by deed of general warranty conveyed the premises to Joseph W. Satter-thwait, in fee simple, who is now the holder of the legal title thereto.
    “ That on the 15th day of August, A. D. 1880, this defendant caused execution to be issued out' of the said court of common pleas upon the judgment, and the same was on the 15th day of August, 1880, levied upon the premises in the petition described, as the property of said William McComb, Jr.”
    The prayer is that the deed to Joseph W. Satterthwait from William McComb, Jr., and Erankie E. McComb, may be declared null and void as to the judgment and lien of William L. Porter upon the premises, and may be set aside as to the judgment and lien, and the premises ordered to be sold, and the judgment and lien satisfied out of the proceeds of such sale.
    The Royal Baking Powder Company, Woodworth & Stevenson, Thomas Kean & Co., Maddox Brothers, Sullivan, Burk & William Glenn & Sons, defendants below, filed like answers and cross petitions, setting up and claiming like liens on the premises, obtained in like manner as that of the plaintiff below and William L. Porter, and each praying for same decree as above.
    William McComb, Jr., defending under his covenants against incumbrances contained in his deed to Joseph Sat? terthwait for the premises described in the petition, filed an answer averring:

      “ That the premises described in the petition were purchased by and conveyed to said William McComb, Jr., in fee simple, on or about the 1st day of May, 1873.
    “Thaton or about the 20th day of December, 1878, the. said premises were, upon the demand of said William Mc-Comb, Jr., set off and assigned to said William McComb, Jr., as and for a homestead, exempt from levy and sale upon execution, by the sheriff of Allen county, Ohio, by virtue of proceedings under an execution in his hands, issued upon a judgment rendered in the court of common pleas of Richland county, Ohio, against the said William McComb, Jr., and in favor of Thomas E. Davis, which said assignment of said premises to said William McComb, Jr., as a homestead, remained in full force, and no further proceedings in relation to said homestead were ordered, or have been since taken by the court, and that said premises were so occupied as a homestead, up to the time of, and after the sale of the same to said Joseph Satterthwait by the said William McOomb, he, the said Wm. McOomb, Jr., being then, continued to be, and now is, the head of a family, a resident of Ohio, and not the owner of any other property, either personalty or realty.
    “The said William McOomb, Jr., for further answer unto the -petition and the several answers and cross petitions herein, says:
    “ That for the purpose of the support of himself and family, and to furnish him means to engage in business for the support of himself and family, he sold and conveyed in fee simple, the premises described in the petition, ’to Joseph Sat-terthwait, on the 7th day of May, 1880, for the sum of one thousand dollars, and that he has so used the proceeds of the sale of said premises.”
    To this answer, the plaintiff below and the several defendants who had filed answers and cross petitions, demurred.
    A demurrer also seems to have beep filed by Joseph Sat-terthwait, to the several answers and cross petitions, which was never ruled upon.
    The demurrers to the answer were sustained, and a decree rendered setting aside the conveyance from William McComb, Jr., and his wife, to Joseph Satterthwait, and the premises ordered to be sold to satisfy the various judgments set up in the petition and cross petitions, and the costs. To this decree the plaintiffs in error excepted.
    On petition in error in the district court, this judgment and decree was affirmed.
    To reverse this judgment of affirmance, as well as the judgment and decree of common pleas, this proceeding in error is prosecuted by Wm. McOomb, Jr., and Joseph Satterthwait.
    The errors complained of and assigned in the district court are as follows:
    I. That said court of common pleas erred in sustaining the demurrer to the answer.
    II. That said court erred in finding and decreeing, that the several judgments in behalf of the defendants in error respectively, were valid and subsisting liens upon the premises described in the petition of the plaintiff below.
    III. That said court erred in decreeing that the deed from William McComb, Jr., and wife, to the said Joseph Satter-thwait be set aside.
    IY. That said court erred in ordering said premises to be sold at judicial sale, and that the proceeds be applied to the payment of the respective judgments in favor of said defendants in error.

      Isaiah Pillars, for plaintiff in error :
    I submit that the homestead being determined, as in the case at bar, it stands exempt from execution, and is not “ bound ” for the payment of any judgment. That is, that there can not arise or exist, by operation of law, any lien against the homestead for the payment of a judgment against the owner. There can be no judgment lien with no right to enforce it. A lien without the right to make it effective, without the right to enforce it, is an absurdity. There can be no such thing as a lien lying in abeyance, dormant, slumbering, waiting for some event to happen to give it life or vitality, so that it may be enforced. ' I sáy that it is an absurdity. A lien must have life. The law recognizes no suspension of it. A court of chancery may sometimes temporarily enjoin its enforcement, for the purpose of determining rights. Where the right to enforce does not exist, there can be no lien. Freeman on Execution, § 249. Thus, I submit, the homestead as against judgment liens being unincumbered, the owner has the right to sell, and the purchaser takes the title free from all judgment liens. By selling, the owner of the homestead commits no fraud on the rights of his creditor. He sells nothing the creditor can touch. He sells nothing he can subject to the payment of his claim. It is held in the case of Woodman v. Paige, 5 Ohio St. 71, “ That a release of dower in a deed executed by husband and wife, without consideration, to defraud creditors, will not estop her to claim dower against the grantee, or any purchaser from him without notice. No fraud can be imputed to her because of such release, for the reason that she releases nothing that could be taken by her husband’s creditors.” Similar doctrine is held in Sears v. Shanks, 14 Ohio St. 298, and Traey v. Cover, 28 Ohio St. 61. And so, in the case at bar, McComb, in selling the premises described in the petition, sold nothing his creditors could touch. And Satterthwait took the land free from the lien of the judgments. Rorer on Jud. Sales, §556 ; 1 Am. Law. Reg. N. S. 715; Oreen v. Marks, 25 Ill. 221; Morris v. Ward, 5 Kan. 239 ; Lamb v. Shay, 14 Iowa, 567; Commins v. Lory, 16 Iowa, 41; Fishhack v. Laru, 36 Ill. 437, 44 Ill. 175; Kovalk v. Kram,er, 8 Cal. 66 ; Bliss v. Clark, 39 Ill. 596 ; Wiggins v. Chance, 54 Ill. 175; Hamworth v. Tra/ois, 67 Ill. 301; Houghton v. Lee, 50 Cal. 108; Black v. Epperson, 40 Tex. 162, 187; Oeapon v. Stephenson, 17 Kan. 617; Martin v. Meredith, 71 N. C. 216; Johnson v. Harrison, 41 Wis. 381; Ooodwell v. Blumer, 41 Wis. 436.

      Richie & Richie, for defendant in error:
    We submit as the law of Ohio: 1st. That a lien, having once 'attached, continues so long as the judgment has life. 2d. That such lien, by assignment of homestead, is not canceled, but that its enforcement by sale is prevented, so long as the premises so assigned remain the home of the debtor’s family, and no longer. 3d. That 'such lien is not divested or canceled by forbidding a sale under it, no more than a lien of a judgment is divested by the filing of a supersedeas bond. 4th. That an act of the debtor in selling and conveying the homestead cannot deprive the judgment creditor of his rights under the lien conferred by statute; while it does bar the debtor’s right to longer claim such property as a homestead. It is a waiver — a renunciation of such right. 5th. That Sat-terthwait, having taken the land subject to these liens, with full knowledge, cannot be permitted to dispute their validity any more than he could, had they been created by a mortgage executed by McComb. The authorities cited by plaintiff in error .from other states than Ohio do not apply here as our statutes relating to exemptions are not similar to those of those states.
   Follett, J.

Did the district court err in affirming the judgment of the common pleas? This depends upon the meaning of certain statutes of Ohio.

As between debtor and creditor, the law of Ohio makes humane provision, not so much for the debtor himself as for the benefit of his family — the wife and the children ; and does not overlook the interest of the creditor. It has sought to protect each as an honest citizen, trying to perform every obligation. And the people of Ohio look to her laws for homestead rights and judgment liens.

I. As to judgment liens on this real estate. The petition and cross petitions below set up judgments obtained before a justice of the peace, transcripts of which were filed in the office of the clerk of the court of common pleas of Allen county, where the real estate was, in October 1878 ; that William McComb, Jr., then owned the real estate, but that he sold and conveyed the same to J oseph W. Satterthwait, May 7, 1880.

Revised Statutes, section 5377, provide: “ The party in whose favor a judgment is rendered by a justice of the peace, . . may at any time after the day the judgment is rendered, if the same be not appealed or stayed, file in the office of the clerk of the court, of common pleas of the county in which the judgment was rendered a transcript thereof, having certified therein the amount, if any, paid thereon ; and thereupon the clerk shall enter the case on the execution docket, together with the amount of the judgment, and the time of filing the transcript,” etc.

Section 5378. Such judgment, if the transcript be filed in term time, shall be a lien on the real estate óf the judgment debtor within the county, from the day the transcript is-filed ; and if filed in vacation, the judgment shall, as against the debtor, be a lien from the day it is filed, but as against other transcript is filed in vacation, and- judgments rendered at the next term of the court, it shall be a lien only from the first day of the next term.”

“ Section 5379. Execution may be issued on such judgment at any time after filing the transcript, as if the judgment bad been rendered in court; but the lien shall remain as provided in the preceding section.”

The above provisions are plain; and the facts show that the judgments became liens on the real estate in October, 1878, and the homestead was not set off and assigned until December 20, 1878, more than two months after the liens attached.

There is no question here as to whether or not a judgment lien can attach to a homestead set off on demand, as no such judgment is in this case.

It matters little whether or not at common law lands were liable to execution sales, or what rights were given by the Statutes of Westminster, 13 Elizabeth, or what statutes other states may have passed. And we do not determine what might be the best policy as to exemption laws. We have to apply the law as we understand it. And we think the judgment liens attached to the premises before the homestead was set off.

II. Did tiie liens become detached ?

The premises described in the petition were purchased by, and conveyed to, William McComb, Jr., about May, 1878; and on or about the 20th of December, 1878, the same, upon demand, were set off and assigned to William McComb, Jr., as and for a homestead.

The claim is, that by this assignment of a homestead the judgment liens became detached, and thereafter the lands assigned as a homestead were held freed of the liens.

From time to time the amount in value that could be held in a home, as against a just debt, was increased, so that in 1878 it was one thousand dollars, as is now provided in Revised Statutes, section 5435 : Husband and wife living together, a widow or a widower living with an unmarried daughter or unmarried minor son, may hold exemptfrom sale, on judgment or order, & family homestead not exceeding one thousand dollars in value; and the husband, or, in case of his failure or refusal, the wife, shall have the right to make the dem.and therefor; but neither can make such demand if the other has a homestead.”

Thus our laws regard a homestead as a personal privilege which the husband mag fail or refuse to claim, when the wife shall have the right to make the demand, but she may- or may not exercise the right. Conley v. Chilcote, 25 Ohio St. 324; Butt v. Green, 29 Ohio St. 667; Chilcote v. Conley, 36 Ohio St. 547; Carpenter v. Warren, 38 Ohio St. 416.

Section 5438 also provides- — •“ The officer executing any writ of execution founded on a judgment or order, shall, on application of the debtor, his wife, agent, or attorney, at.any time before sale, if such debtor has a family, and if the lands or tenements about to be levied upon or any part or parcel thereof, constitute the homestead thereof, cause the inquest of appraisers, upon their oaths, to set off to such debtor, by metes and bounds, a homestead not exceeding one thousand dollars in value . . . and if no complaint be made by either party, no further proceedings shall be had against the homestead; but the remainder of the debtor’s lands and tenements, if any there be, shall be liable to sale on execution ; upon complaint of either party, and upon good cause shown, the court out of which the writ issued may order a re-appraisement and re-assignment of the homestead ; but if no applica-. tion be made during the lifetime of the debtor, it may be made by the widow of the judgment debtor at any time be-. fore a sale.” The proceedings stop, and the liens remain attached, and the homestead may be re-appraised and reassigned.

“Section 5439. When the homestead ot a debtor in execution consists of a house and lot of land which, in the opinion of the appraisers, will not bear division without manifest-injury and inconvenience, the plaintiff in execution-shall receive, in lieu of the proceeds of the sale of the homestead, the amount over and above, one hundred dollars, annually, adjudged by the appraisers as a fair and reasonable rent for the same, until the debts, costs, and interest are paid; . . . . if the rent be not paid quarterly, as above provided, or within ten days after each and every payment becomes due, the officer shall proceed and sell the homestead; . . . the-plaintiff in execution, the judgment debtor, or any other person to whom, under any law of this state, such homestead has 'been set off, may cause the homestead to be re-appraised once in two years, in the same manner as provided in the preceding section, and the rent shall, after such re-appraisement, be paid in accordance therewith,” etc. Here, as above, the homestead may be re-appraised, and if the proper rent be not paid quarterly the homestead may be sold for not less than its appraised value. The judgment liens remain attached ; but the proper parties may hold exempt from sale the homestead, provided the rent be paid, (if rent be due) and they hold the same for a homestead. In no place does the statute provide that judgment liens shall be detached, or that homesteads shall be held fréed of judgment liens. And section 5440 seems to include just such liens, “ When a homestead is charged with liens, some of which, as against the head of the family, or the wife, preclude the allowance of a homestead to either of them, and others' of such liens do not preclude such allowance,” etc. Judgment liens cannot destroy or disturb the home. The leading object of the homestead exemption is, of course, to protect the home.- — a home not for the husband alone, but for him arid his wife, and children.”' Judge J. F. Dillon. “Aplace where they, may live in society beyond the reach of financial misfortune and the demands of creditors.” Parsons v. Livingston, 11 Iowa, 106; Beecher v. Baldy, 7 Mich. 506; Robinsons v. Wiley, 15 N. Y. 489. A homestead may l>e held perfectly secure from judgment liens, even'though the judgment liens are used to preserve, for another home, some means of support.

The assignment of the homestead did not detach or remove the judgment liens.

III. Did McComb sell the land freed of the liens ?

We think the liens remained.

McComb avers, “ That for the purpose of the support of himself and family, and to furnish him means to engage in business for the support of himself and family, he sold and conveyed in fee simple, the premises described in the, petition, to Joseph Satterthwait, on the 7th day of May, 1880, for the sum of one .thousand dollars, and that he has so used the proceeds of the sale of. said premises.”

This is all we know about it. He claims he should have a right to change his homestead, but does not claim he secured or tried to secure another homestead ; and he also claims he should hold a $1,000 homestead, just as the law permits him to hold $500 in lieu of a homestead, but he does not tell us whether any part of this proceeds remains for the benefit of the wife and children for whom mainly the homestead was set off. If any part be held in lieu of a homestead, it can be but five hundred dollars’ worth.

Our laws make a wide distinction between holding a homestead of one thousand dollars worth exempt from sale, and holding-in lieu of a homestead five hundred dollars’ worth exempt from levy and sale. Judgments are not liens on goods and chattels until a levy is made on them.

The statutes provide that what is held in lieu of a homestead — that with which the comforts of a home may be secured —may be held exempt from levy and sale; but that a homestead may be held exempt from sale; and do not seek to free it from the judgment liens already upon it.

And it is certain that the judgment liens, which were upon the land while a homestead occupied by McComb’s family, would remain thereon when McComb’s interest was transferred to Satterthwait, and McComb abandoned the homestead; and Satterthwait did not hold the land freed of the judgmént liens.

IY. Could the land be sold to pay the liens ?

The court did not err in setting aside the deed as to the judgments and liens thereof, and ordering the land sold for the satisfaction of the liens.

The liens were upon the land when the deed was given, and the sale of the land to satisfy the liens had been stayed only by the homestead held by McComb. McComb does not claim that he held the same as a homestead after May 7,1880, when he sold and conveyed the same to Satterthwait, and abandoned it as a homestead. No one claims that Satter-thwait held the land as a homestead for McComb or his family. Mrs. McComb had signed the deed, and abandoned the homestead. And the homestead being out of the way, there is nothing shown that should longer stay the sale of what was once the homestead.

This is in accordance with Allen v. Cook, 26 Barb. 374, and Smith v. Brackett, 36 Barb. 571, and other cases.

The case of Wehrle v. Wehrle, 39 O. S. 365, is not like this case. In that case an executor sought to sell land subject to a widow’s homestead. The cases are not in conflict, but different.

There was no error, and the judgment is affirmed.


text:
    Stephens v. The State.
    1. If several persons agree together to rob another, and for that purpose arm themselves with deadly weapons, and meet at the house of the person to be robbed, and to carry out their unlawful design one is left outside, ready to aid and assist, while the others enter and commit the crime agreed on, all are guilty of the robbery as principals.
    2. So, if those inside the house while attempting to consummate the robbery, and in furtherance of such conspiracy purposely kill the person they are attempting to rob, while he is resisting such attempt, and such killing is the natural and probable consequence of the common purpose, the person outside, who is aiding and assisting is equally guilty as the one striking the fatal blow, though he did not, previous to such attempt agree to or assent to such killing.
    ERROR t-o the Common Pleas of Jackson county.
    Luke Jones, William Jones and Laban Stephens were jointly indicted for the murder of Anderson Lackey, while attempting to rob him in his own house, on the night of April 28, 1883.
    Luke and William" Jones were first tried and cónvicted.
    On the separate trial of Stephens, evidence was offered tending to establish a conspiracy formed by the three defendants to go to Lackey’s house on the night in question to rob him of some money which they supposed he had in his possession ; that pursuant to this agreement they each armed himself with a pistol, Stephens borrowing one for that purpose ; that on their way to Lackey’s house they purchased cartridges to suit their pistols, loaded them, tried them by shooting at a post; that when near Lackey’s house at the suggestion of Stephens they also armed themselves with clubs; that when they reached the house, about 9 or 10 o’clock, they found a light burning, and by looking in, they found Lackey in bed, and his wife and daughter sitting up, and that thereupon two of defendants — Luke Jones being one — ’entered the house with their pistols in their hands, while the third remained outside to watch. Luke Jones approached Lackey and demanded his money or his life. On a refusal to give the money a scuffle ensued, in which Lackey was killed by a shot from the pistol of Luke Jones. It also appeared that almost at the moment of the fatal shot by Luke Jones, another was fired by the other defendant, who entered the room, but whether this was also fatal, is not material. In the meantime the third defendant, as the evidence tended to show, remained outside assisting in the common purpose.
    In this state of proof the defendant asked the following charge : “ That if you find from the evidence, that Anderson Lackey was unlawfully and maliciously assaulted and shot, and intentionally killed by Luke Jones, while attempting to perpetrate a robbery on the person of the deceased, and also find that Laban Stephens, the defendant, prior to such killing, entered into a conspiracy with Luke and William Jones to rob the deceased, Anderson Lackey, and not an agreement or conspiracy to unlawfully take his life, and also further find, that the defendant was not present at the time the shooting and killing was done, you cannot on such finding convict defendant of murder in the first degree.”
    This the court refused to charge, but on this point charged, “ That if Luke Jones, William Jones and Laban Stephens, entered into a conspiracy to commit a robbery on the person of Anderson Lackey, and that the evidence also shows, that the attempt to perpetrate such robbery, under all the circumstances, would naturally, reasonably, and probably involve the taking the life of Lackey, and then find from the evidence that in attempting to perpetrate such robbery, that one of the co-conspirators of defendant unlawfully and maliciously assaulted and shot Anderson Lackey, with the intent to take his life, and that by such assault and shooting gave him a mortal wound . . then the defendant is as equally guilty in law . . . as if done with his own hand, whether he was present wlien'the assault and shooting were done or not.”
    Under this charge, there was a verdict of murder in the first degree, and sentence, which it is now sought to reverse.

      Tripp & Jones, and O. A. Ailcinson, for the motion.

      James Lawrence, attorney-general, contra,
    in support of the charge of the court, cited Stipp v. State, 11 Ind. 62 ; People v. Pool, 27 Cal. 572 ; U. S. v. Poss, 1 Gallis. 624; State v. Shel-lecly, 8 Iowa, 477; People v. Vasquez, 49 Cal. 560 ; State v. Pash, 7 Iowa, 347; 2 Wharton’s Cr. L. (7th Ed.) 998 ; 1 Bishop’s Cr. L. .(6th Ed.) 636.
   JOHNSON, C. J.

The request which was refused when applied to the case on trial was in substance, that if Luke and William Jones, and Laban Stephens agreed to rob Lackey, and for that purpose armed themselves with deadly weapons, and went to his house after night, and, in furtherance of the plan, the Jones boys went in-to commit the robbery, while Stephens remained outside to aid and assist, and that while the two were inside engaged in attempting to commit the robbery, one of them intentionally killed Lackey, Stephens could not be held responsible for this killing, unless he had also previously agreed that Lackey’s life should be taken in the attempt to rob.

The charge as given was in substance, that though Stephens remained outside, yet if he had agreed with the Jones boys to commit the robbery, and was then assisting to commit the robbery, he was responsible for the intentional killing by Luke Jones, though he was outside the house, and although he had not previously agreed to the killing, if it was the natural and probable consequence of tbe conspiracy to rob, and was in furtherance of the conspiracy. ,

Revised Statutes, § 6808, provides that whoever purposely, and either of deliberate and premeditated malice, or by means of poison, or perpetrating, or attempting to perpetrate, any rape, arson, robbery or burglary kills another, is guilty of murder in the first degree.”

By section 6804. “ Whoever aids abets or procures another to commit any offense, may be prosecuted and punished as if he were the principal offender.”

If Luke and William Jones had been indicted with Stephens for the robbery or attempted robbery of Lackey, the acts of the former in the commission of the robbery would be the acts of Stephens also, though he did not previously assent to the particular means employed to commit this crime, if he was engaged in the part assigned him in the robbery.

In the case at bar, the intentional killing by Luke Jones, while attempting to perpetrate a robbery, made him guilty of murder in the first degree, though he had not previously planned the killing but only the robbery. Premeditation in such a case is not essential.

The request refused, makes premeditation, or the assent to a previous agreement to kill, necessary to make Stephens liable for the killing by Luke Jones, while he was outside performing his assigned part in the crime of robbery.

If several are associated together to commit a robbery, and one of them, while all are engaged in the common design, intentionally kills the person they are attempting to rob, in furthercmce of the common purpose, all are- equally guilty, though the others had not previously consented to the killing, where such killing was done in the execution of the common purpose, and was a natural and probable result of the attempt to rob. People v. Vasques, 49 Cal. 560; State v. Shelledy, 8 Iowa, 477; United States v. Ross, 1 Gallison, 624; People v. Pool, 27 Cal. 572; State v. Nash, 7 Iowa, 347; Stipp v. State, 11 Ind. 62; 1 Bishop Crim. Law (7th Ed.) § 636; 2 Whart. Crim. Law (7th Ed.) § 998. This is in effect the charge given by the court.

There wtrs an agreement among them to arm themselves and enter the house of Lackey to rob him. In furtherance of this plan, Stephens remained outside to watch and assist. While his confederates were perpetrating the robbery, or attempting to do so, one of them, Luke Jones, killed Lackey. It was left to the jury to say whether his act was the act of his associates as well as his own. If they found that such killing was in furtherance of the common plan, and was a natural and probable consequence of the attempt to rob, then his associates were responsible, though they had not previously agreed to the killing, and were not actually present, in the house, at the time.

In other words, each is presumed to have intended to authorize the other to kill, if, in perpetrating the robbery, it became a necessary means to its consummation.

Judgment affirmed.