text:
    Shaw v. Bauman et al., Executors.
    A justice of the peace received money, in his official capacity, in satisfaction of a judgment on his docket, and deposited the same in bank to his private account. The bank failed before the sum deposited was drawn therefrom. Held, That the justice was liable to the judgment creditor for the amount so received and deposited.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Fairfield county.
    The plaintiff in error, a justice of the peace, entered a judgment in favor of the defendants’ testator, against Jacob Bauman and Jacob Wetzel, on the 4th day of February, 1873, for $103.70. Execution was stayed for two hundred and forty days. On September 22, 1873, the judgment debtors paid the amount due upon the judgment to the plaintiff, who entered satisfaction thereof upon the docket. The original action was brought to recover the sum received by the justice.
    In answer to the petition of the plaintiff below, the justice admitted the receipt of the money from the judgment debtors, but alleged that on receiving the same he made a special deposit thereof for the plaintiff below with Garaghty & Hunter, a banking house of good financial repute and standing, and then notified said plaintiff that the money had been paid ; that before the money was -called for, the bank failed and made an assignment for the benefit of its creditors. The plaintiff below, in reply, denied the new matter set up in the answer, and prayed judgment. The case was tried to the court, who, on hearing the evidence and arguments of counsel, gave judgment against the plaintiff in error. A motion for a new trial, -on the ground that the decision was against the weight of -evidence, was overruled, and a bill of exceptions taken, embodying all the evidence. From this bill it appears' that on receipt of the amount of the judgment from the-judgment debtor, the plaintiff in error deposited the same in said bank to his own credit, having, however, the same entered in his pass-book opposite a memorandum of the title of the case of JEmde v. Bauman and Wetzel, as follows :
    Garaghty & Hunter,
    In account with Y. E. Shaw. Ur.
    Charles Emde v. Jacob Bauman and J. Wetzel. Hoc. 7, page 90. |107 80. ) $107 80-
    The date, and figures denoting the .sum deposited, were made by the bank cashier, and the memorandum of the case by the justice. It further appeared that the bank,, when the deposit was made, was in good repute, and that the plaintiff in error was in the habit of depositing, in this manner, money collected in his official capacity, all of which was entered on said pass-book as aforesaid, but as. between him and the bank the money was placed on general deposit to his account and drawn on checks given by the justice as other general depositors drew funds therein deposited.
    On error, the district court affirmed the judgment of the-court of common pleas.

      John S. Brasee, for the motion :
    1. Shaw did not receive this money in his official capacity ; the sureties on his official bond could not be compelled to pay it. A justice is required by the statute (S. & C. 804, sec. 200) to receive certain moneys. See also the act of April 30, 1862 (S. & S. 423). But nowhere in the statute is a justice directed or authorized to receive money due or to become due on a judgment on his docket. The act of April 30, 1862, simply provides a remedy to recover money which has been received in the performance of a ffuty attached to an officer.
    But Shaw did not receive the money in dispute in his-official capacity; he was but the agent of Bauman, the-debtor, or his trustee of the money to pay it to Emde. He was but the bailee without reward, and for his default as-such bailee, Emde can not have an action. Monteith v. Bissell, Wright, 411.
    2. But if Shaw did receive the money in his official capacity, it is clear that he did not actually convert the money to his own use, and so deal with or treat it as to-make it his own.
    Shaw delivered the identical money to the banker, who-knew all the circumstances. The money was placed to the credit of Shaw, for the bank had but one system of accounts; but it was not mixed with Shaw’s individual money, because all his own money was there on certificates.
    If the banker took the money out of the marked package in which Shaw delivered it to him, the act was a tort by the banker; and, in fact, the transaction was such that Emde, the owner, might, at any time after the deposit,, have demanded and had an action for the money from and of the banker.
    It can not be implied from Shaw’s being required to-draw cheeks, that he knew that the transaction, as he intended it, had been varied; that the identical money be-had, carried there was in use by the banker, and he (Shaw),, as shown by the bank books, was the creditor in his individual capacity. Peabody v. Cline, & Ohio St. 387.

      John G. Peeves, contra,
    claimed the law to be that a justice of the peace had no authority in law to deposit money received by him in his official capacity in a bank; and if he does so deposit it, he is chargeable with any loss that may occur. Phillips v. Lamar, 27 Ga. 228; United, States v. Prescott, 3 Howard, 578; Halbut v. State, 22 Ind. 125; Morebeck v. State, 28 Ind. 86; 1 N. J. L. (Coxe), 542; 7 Watts & Serg. 142; 73 N. C. 255; 36 Ind. 346; 53 Ind. 331; 1 Denio, 233.
    The money was an individual deposit with and loan to-the bank by Shaw. Bank v. Hughes, 17 Wend. 94; Phillips v. Lamar, 27 Ga. 228; McDonnell v. Harding, 7 Simons, 177.
    The transaction amounted to a conversion. Bartlett v. Hamilton, 46 Me. 435.
   Boynton, J.

The eleventh section of the act of March 11, 1853 (1 S. & C. 764), requires every justice of the peace before entering upon the duties of his office to give bond, payable to the state, conditioned that he will well and truly pay over according to law all moneys which may come into his hands by virtue of his office. And the act of April 30, 1862 (S. & S. 423), enjoins upon justices of the peace the duty to receive from constables all moneys by them collected, except where the same have been paid over by the •constable to the party entitled thereto before the return of his execution, and declares that “ all moneys by such justices, so received, or otherwise collected, with or without process, and received in their official capacity for the use •of any person or persons, shall be by them paid over to such person or persons, his or their agent, on demand.” It is also enacted, that on refusal or neglect to pay over money ■so received to the party'entitled thereto, summary proceedings for the amercement of the justice may be instituted in the probate court. The present action was brought, not upon the bond, but for a breach of tiie duty enjoined by the statute. The money paid on the judgment was received by the justice in his official capacity. The circumstance that the same was received from the judgment debtors a few days before the stay of execution expired, does not affect the character in which it was received, nor the duty of the justice respecting its safe keeping.

The money was received for the judgment creditor and satisfaction of the judgment was entered on the docket. These were official acts, done in the performance of official duty, and must be held to have the same legal effect as if done and performed on the day the stay expired. The question then arises: Did the deposit by the justice, in the bank, of tbe funds so collected, to his own credit, without the assent of the owner of the fund, operate as a conversion of the same to the use of the justice ? Or, in other words, the bank being in good repute when the deposit was made, did its-subsequent failure to meet its liabilities excuse or relieve the justice from the performance of the duty to pay over the amount collected to the judgment creditor? The deposit made was not a special deposit, and possessed none of the characteristics of a bailment. That the identical funds deposited were to be kept by the bauk and returned to the depositor, is not pretended. Whether a special deposit of the fund in the individual name of the-justice would have relieved him from liability upon failure of the bank, is a question we have not considered. There was no such deposit made either in his own name or that of the judgment creditor. The memorandum by the justice in ]the bank pass-book did not affect the character of the deposit, nor in any wise affect his duty or change his-relation to the judgment creditor. He states in his testimony that his purpose in making the memorandum was, that his book should show, in case of accident to him, all' about the money and where it was. But such purpose does-not change the legal character of the transaction.

As between him and the bank, he was a general depositor, and the title to the funds, when deposited, vested in the bank and they became a part of its assets. No'interest in or claim upon the specific funds received from the judgment debtors remained either in the judgment creditor or the justice. The relation between the bauk and the justice, as respects the money deposited, was that, not of bailor and bailee, but of debtor and creditor. In legal effect the deposit was a loan by the justice to the bank of the money belonging to the plaintiff" below. Ringo v. Field, 1 Eng. 49 ; Story’s Bailm. § 100.

The case of Montieth v. Bissell’s Adm’r, Wright, 411, relied on by plaintiff in error, has little or no bearing upon the question here involved. There the justice received the money from the judgment debtor, and placed it in his desk,. •where he kept his own money and that received in his official capacity, and locked it up. Notice was immediately given to the judgment creditor that the money was ready for him, but he neglected to call for it until after the next Sunday, on which day while the justice was at ■church, his house was broken open and the desk and •contents carried away. The court held that if the justice received the money in his official capacity — which was a disputed fact — he was the legal bailee of the creditor, without reward, and, as such, only liable for gross negligence. It will be observed that the money stolen was the identical money paid by the judgment debtor, no part of which had been used by the justice, or converted to his own use. Bartlett v. Hamilton, 46 Me. 435.

Our attention has been directed to another class of cases, the principle of which, it is contended, is decisive of the ■case at bar. They assert the doctrine that so long as money ■ or property, or the proceeds thereof, belonging to the prin■cipal, may be traced and identified in the hands of his agent, or his personal representative or assignee, the prin■cipal may recover it, unless it has reached the hands of an innocent holder. There is no doubt of the correctness • of this rule.

The question, in such case, is one of title to the fund, .and usually arises between the personal representative of the trustee of the fund, or the depositary of the latter, and the beneficial owner; and so long as the beneficiary can trace the fund, and identify it, he is entitled to it, and for the very obvious reason that he o^ns it.

In Pennell v. Deffell, 4 De Gex., M. & G. 372, Knight Bruce, Lord Justice, in discussing the principle, says: “ When a trustee pays trust money into a bank, to his •credit, the account being a simple account with himself, not marked or distinguished in any maimer, the debt thus ■-constituted from the bank to him is one which, as long as it remains due, belongs specifically to the trust as much .and as effectually as the money so paid would have done, Lad it specifically been placed by the trustee in a particular repository and so remained; that is to say, if the specific debt shall be claimed on behalf of the cestuis que trust■ent, it must be deemed specifically theirs, as between the trustee and his executors and the general creditors,after his •death on the one hand, and the trust on the other. Whether, the cestuis que trustent are bound to take to the debt — whether the deposit was a breach of trust, is a different question.”

The same principle was decided in The Overseers of the Poor v. The Bank of Virginia, 2 Gratt. 544; Veil v. Mitchell, 4 Wash. C. C. 105 ; Frith v. Cartland, 2 Hem. & Mil. 417; Brown v. Dunham, 11 Gray, 42; and in Van Allen v. American National Bank, 52 N. Y. 1.

In the latter case, it was held that “ where an agent deposits in a bank, to his own account, the proceeds of prop•erty sold by him for his principal, under instructions there to keep them, a trust is impressed upon the deposit, in favor of the principal, and his right thereto is not affected hy the fact that the agent, at the same time, deposits other moneys belonging to himself; nor is it affected by the fact that the agent, instead of depositing the identical moneys received by him on account of his principal, substitutes other moneys therefor. In such case, in an action brought hy the principal against the bank, upon its refusal to pay upon presentation of the agent’s check for the amount so deposited, the bank can not set up a want of privity. It is .a question of title solely.”

It will readily be seen that the principle of these cases is in nowise decisive of the case under discussion. Nor would its determination seem to be materially affected hy it. The right of the beneficiary of the fund to pursue and reclaim it, so long as he can trace and distinguish it from •other funds, does not affect his right to hold the trustee to a personal liability, where the latter has been guilty of a breach of duty respecting the trust property. The claimant of the fund may have two remedies, and may elect which one he will resort to. If A should unlawfully sell B’s horse, B may replevin the horse from the purchaser, or sue A for the conversion. If the plaintiff below had ratified the aet of the plaintiff in error in depositing the fund in the bank,, and sought to recover the same from the bank, as his-money, the fact that he might succeed would not affect his-right, in the absence of such ratification, to maintain an action against the justice for the misappropriation of the fund. The rule in equity is well settled, and by a class of cases not supposed to be in conflict with the. foregoing, that if a. trustee deposits the funds of a trust estate in bank, in his own name individually, with his own private funds, he thereby becomes debtor to the trust estate, and a creditor of the bank; and, in case the trust funds are lost through the insolvency of the bank, the trustee becomes individually liable for the loss. Wren v. Kirton, 11 Ves. 377; Macdonnell v. Harding, 8 Eng. Ch. 177; In the matter of Stafford, 11 Barb. 353; Brown v. Rickets, 4 John Ch. 303; The Utica Iris. Co. v. Lynch, 11 Paige, 520. Where a sheriff collected money under an execution, and of his own accord deposited the same in a bank which failed, he was-held liable to the plaintiff in execution. Phillips v. Lamar, 27 Geo. 227.

In Robinson v. Ward, 2 Car. & Pay. 59, it was held that where an attorney, having in his hands the money of his-client, places the same to his private credit, at his bank'er’s, he will be liable to the client for the amount, if the bank fail, although he does so bona fide, and has a large-sum of money of his own at the banker’s.

Abbott, C. J., said: “If the person having the money mixes it with his own, he thereby makes himself, personally, debtor to the estate. Here the defendant has mixed this money with his own, by paying it to the credit of his private account at his banker’s, and he is therefore liable in this action. This is a very hard case, and all suspicion against the defendant is quite out of the question; but one of two innocent parties must lose the money, and, under the circumstances of the ease, I think the plaintiff is entitled to a verdict.”

These adjudications are in point, and are decisive of the present case.

Where a justice of the peace receives, in his official capacity, money, in satisfaction of a judgment upon his docket, and places the money so received to his private account at a bank which fails, he is liable-to make good the loss to the judgment creditor.

Motion overruled.


source: Caselaw Access Project

author: Gilmore, J.

license: Public Domain

text:
    O’Neal v. Blessing.
    1. An action before a justice of the peace, to recover damages caused by defendant’s stock breaking through a fence and destroying the plaintiff’s-crops growing on lands of which he was a tenant in possession, is an. action of trespass to real estate, within the meaning of section nine of the justice’s act (S. & C. 771), which limits the jurisdiction to cases id-which the damages claimed do not exceed one hundred dollars.
    2. If the damages claimed by the plaintiff, and the judgment rendered in-his favor by the justice, exceed one hundred dollars, the court of common pleas can not take appellate jurisdiction of the action.
    3. 'Where an appeal from such a judgment was attempted, and the plaintiff thereupon filed his petition claiming damages in a sum of which the-court of common pleas had original jurisdiction, and the defendant, without objecting to the jurisdiction, obtained an order of the court requiring the plaintiff to amend his petition, and then demurred to the petition as amended. Held: That the defendant had thereby entered his appearance as in an original action in the court of common pleas..
    Motion for leave to file petition in error to the District-Court of Madis.on county.
    The plaintiff and defendant were tenants of the same landlord, and were respectively in possession of adjoining-tracts of land divided by a partition fence. The action was commenced before a justice of the peace to recover three-hundred dollars damages occasioned by a drove of defendant’s cattle breaking through the partition fence and destroying thirty-five acres of the plaintiff’s growing corn. There was a jury trial and a verdict and judgment for the plaintiff for $235 and costs. The defendant attempted to appeal the case to the court of common pleas.

      The plaintiff filed a petition in that' court:- 'The defend- . rant filed a motion to strike it from the files for informality, which motion was sustained, and-the plaintiff’ had leave to file an.-amended petition. An amended-'petition was accordingly filed. A motion was filed-by defendant to strike out a cértaínpo.ftión of the petition, which was sustained, .and the plaintiff had leave to file a second amended petition, which was filed accordingly, and upon its face this •■second amended petition does not show that the action was ■one that had come into the cohrt of common pleas-by appeal.' • ■ ■ . , ■. .
    'íío this second amended petition the defendant demurred •on,the ground, that “ this .court has no appellate jurisdiction of the subject-matter of this - suit.”
    The court sustained the demurrer and rendered “judgment against the plaintiff without costs, said judgment being based on the ground that neither the justice of the peace nor'this court had jurisdiction of the subject-matter ■of this suit.” Aud afterward, on motion of the defendant, the court ordered that “ said transcript be aud is dismissed.”
    On error the district court affirmed the judgment of the -court of common pleas.
    By this proceeding the plaintiff seeks the reversal of both judgments.

      John J. Bell, for the motion,
    claimed that there was no -objection made in the common pleas court to the original or amended petition on the ground of want of jurisdiction, .and as nothing appeared on the face of the petition to show ■that the jurisdiction of that court was appellate, the demurrer could not reach the question of jurisdiction. Nichols v. Patterson, 4 Ohio, 204.

    The action was not trespass to real estate and the justice had jurisdiction (S. & C. 770, sec. 4); Bridgman v. Wells, 13 Ohio, 43.

      McCloud § O’Donnell, contra:
    A justice of the peace has no jurisdiction in actions for -trespass on real estate when the amount claimed exceeds •one hundred dollars (S. & C. 771).
    The amount claimed before the justice exceeded that sum and the cause of action was for trespass on real estate. 3 Blackstone’s Com. 210 ; 1 Waterman on Trespass, 219, ■279; 1 Nash’s PI. 584; Swan’s PI. 484.; Swan’s Treatise (10 ed.), 527; Tripp v. Hassig, 20 Mich. 254.
    The justice of the peace having no jurisdiction of the •cause -of action the common pleas court had no appellate jurisdiction. Woods v. Farrell, 19 Ohio St. 427; Place v. Walsh, 3 W. L. M. 611; Askew v. Askew, 49 Miss. 301.
   Gilmore, J.

In order to determine the question of costs before the justice, it is necessary to ascertain whether he had jurisdiction of the action; and this depends on whether the action is governed by the ninth section of the justice’s act (S. & C. 771), which provides that justices shall have jurisdiction in actions for trespass on real estate, where the damages demanded shall not exceed one hundred dollars.

It is contended, by plaintiff's counsel, that a tenant’s interest in a growing crop is as much personal property as sheep, hogs, or cattle; and, hence, that the remedy for ‘an .injury to either of them must be the same.

This claim is untenable. While it is true, that in this state we have abolished all distinction in the form of actions, yét we still have recourse to the common law iu or•der to determine the nature of any given action.

At common law a man is held answerable, not only for his own trespass, but.also for that of his domestic animals, ■and if they commit a trespass on the lands of another, or the lands of a tenant in possession, unless through defect of fences which the latter ought to repair, the owner is liable in an action quare clausum fregit.

The books show that this has been the uniform practice ■•and understanding of the law in all times ; and it is, therefore, too late to inquire whether the remedy by action of trespass is founded upon the strictest logical propriety,where the cause of the damage is the negligence, and not the willful act of the owner of the unruly or breacby animal. Noyes v. Colby, 10 Fost. 143; Waterman on Tres., sec. 858.

This is assumed to be the law, without question by this court, in Jack v. Hudnall, 25 Ohio St. 255; and also in Phelps v. Cousins, 29 Ohio St. 135.

The action was, therefore, under the 9th section of the justice’s act, above cited; and the damages claimed and judgment rendered before the justice, having both been for more than one hundred dollars, it is clear that the justice had not jurisdiction of the action, and that the proceedings and judgment therein, before him, were void;, including the judgment for costs against the defendant.

It follows that the court of common pleas could not take appellate jurisdiction of the action, and that if a motion to strike the papers in the attempted appeal from the-files, on this ground, had been made at the proper time, it would rightly have been sustained; but it does not necessarily follow, that the court of common pleas had not obtained complete jurisdiction of the case, as an original action in that court, at the time the attempted appeal was in fact dismissed; the damages claimed, in the petition filed, being over one hundred dollars. The subject-matter of the action was one over which the court of common pleas had original jurisdiction; and the parties, either by express consent, or by acts which the law regards as equivalent thereto, could submit themselves personally to its jurisdiction. . The question is: Did the parties, by their acts, give, the court of common pleas complete original jurisdiction of the action ? We think they did. The filing of his petition in the action, by the plaintiff, was an act that was subject to no equivocal construction. It was an appearance on his part. To this petition, and also an amended petition filed by leave of the court, the defendant interposed motions raising questions as to the sufficiency of the petitions respectively, under sections 508 and 118 of the code. The court considered and disposed of these motions, and the journal entries made under its direction clearly show that the motions were sustained, in whole or in part, and that, on each ruling being made, the plaintiff had leave of the court to amend his petition.

By the filing of these motions to the petitions respectively, and invoking the rulings of the court thereon, the defendant impliedly waived the issuing and service of process, and submitted his person to the jurisdiction of the court in the action. It was, in legal effect, precisely as if the plaintiff had filed his petition and the defendant had expressly waived process and filed his answer. Schafer v. Waldo, 7 Ohio St. 309; Maholm v. Marshall, 29 Ohio St. 611.

But the parties, in the court of common pleas, proceeded further in the action. The plaintiff, by leave of the court, filed a second amended petition. To this, a demurrer was filed and sustained, on the ground “ that the court had no appellate jurisdiction of the subject-matter of the action.” There were two reasons, at least, why this demurrer should have been overruled. Eirst. The petition did not show on its face that the action had come into that court by appeal, and the demurrer did not, therefore, raise the question of jurisdiction. Second. The petition was filed in an action in which, .as was above shown, the court had original and not appellate jurisdiction ; and even if the motions above mentioned had not preceded it, the filing of the demurrer was, by implication of law, an entering of his appearance in the original action in which the petition was filed, and es-topped the defendant from saying that the action was one of appellate jurisdiction, and also from denying that he had entered his appearance in the original action in that court. Barrington v. Heath, 15 Ohio, 483; Evans v. Iles, 7 Ohio St. 233 ; Wood v. O’Ferrall, 19 Ohio St. 427.

The papers on file in the attempted appeal had no force •or validity for any purpose, and were, therefore, properly stricken from the files, as having no connection with the case, and the court properly refused to render judgment for costs made in the attempted appeal, or those that had been taxed in the justices’ transcript.

But the court of common pleas erred in sustaining the demurrer to the second amended petition, for the reason,., as above shown, that, having jurisdiction of the subject-matter, it had also obtained jurisdiction of the parties in this action by their acts as shown by the record at the time the demurrer was sustained.

The judgment of the court of common pleas on the demurrer, and that of the district court affirming the same,, are reversed, and the cause is remanded to the court of common pleas for such further proceedings as may be authorized by law.

Judgment accordingly.


author: White, C. J.

text:
    Bolles et al. v. Harris et al.
    In a suit to contest the validity of a nuncupative will, it is competent to-prove that the testamentary words reduced to writing and probated are-not the words spoken by the testator; and it is not error for the court to instruct the jury that if the words reduced to writing and probated are not substantially the same as those spoken, the will is invalid.
    Motion for leave to file a petition in error to reverse the' judgment of the District Court of Sciota county.
    The original action was brought to contest a nuncupative will, admitted to probate as the will of John H. Baird, deceased. The action was appealed to the district court. On the trial in that court evidence was given by the contestors tending to prove, among other things, that the alleged testator did not request the witnesses to said will to witness the same, and that the words actually spoken by the said, testator were not the same as the words written down by the witnesses.
    On the part of the contestees evidence was given tending to prove that the words reduced to writing by the witnesses were the same as those actually spoken by the testator, and that he requested them to witness the same as^ his will.

      The testimony beiüg closed, the contestees asked the court to instruct the jury, among other things, as fpllows: That “ parol evidence is not competent to show that the words actually spoken were other or different from those .set forth in the will probated.”
    The court refused to instruct the jury as requested, but did instruct them, on this subject, as follows: “ That, if the evidence showed that the words actually spoken were substantially the same as the words written down by the witnesses, that would be sufficient; but, on the other hand, if the evidence should show that the words written down by .the witnesses as proved and probated, were not substantially the. same as the words- actually spoken, then the will could not stand, and their -verdict should be for the plaintiffs.”
    To the instruction as given, and to the refusal to instruct as asked, the eontestors excepted.
    The trial resulted in a verdict against the validity of the-will.
    The only error relied on is that relating to the charge of the court to the jury.

      W. A. Hutchins, for the motion,
    referred the court to the following statutes: 2 S. & C, 1631, sec. 74; lb. 1616, see, .2 ; lb. 1625, secs. 47-51, and for a general summary of the law in regard to nuncupative wills, to 1 Redfield on "Wills, 182-201, and argued that a nuncupative will should stand .on the same footing as written wills, as to the competency of parol evidence to change or modify the words used.
    ' For the rules as to written wills, see 1 Redfield on Wills, chap. 10, paragraphs 1, 5, 7, 8, 9, and 10.
    Nuncupative wills should be favored. 2 Blackstone’s Com. 500. And as to the effect of such wills, see 7, Bacon’s Abdg. Til. Wills, 305; 1 Redfield, 186; 201; Hatcher v. Millard, 2 Cald. 30; Postwood v. Hunter, 6 B. Mon. 538.

      ■ O. F. Moore, N. W. Fvans, and William Livingstone, contra.
    ■ This court has said that the contest of a will under our ■statutes is nothing more than a review of its probate. Banning v. Banning, 12 Ohio St. 437; Brown v. Burdick, 25 Ohio St. 266; Mears v. Mears, 15 Ohio St. 91.
    ' The rules claimed by counsel for plaintiff in error would ■deprive legal distributees of valuable rights without giving them a day in court, and open a wide door for fraud.
    On the subject of the admissibility of parol evidence, see Jarman on Wills, 349, 356 ; Small v. Allen, 8 T. B. 147; 1 Redfield on Wills, 498, 499, 510, 511; Turner & Ross, 48; Newberg v. Newberg, 5 Mead, 364; Howland v. Taylor, 53 N. Y. 627, 628 ; McLaughlin v. McDivit, 63 N. Y. 213 ; Rollwagen v. Rollwagen, 63 N. Y. 504.
   White, C. J.

The statute on the subject of nuncupative wills is as follows :

“A verbal will, made in the last sickness, shall be valid in respect to personal estate, if reduced to writing, and subscribed by two competent disinterested witnesses, within ten days after the speaking of the testamentary words; and if it be proved, by said witnesses, that the testator was ■of sound mind and memory, and not under any restraint, and called upon some persons present, at the time the testamentary words were spoken, to hear testimony to said disposition as his will.”

Counsel for the plaintiffs in error contends that the admission of the alleged will to probate, by the probate court, is conclusive evidence that the testamentary words, reduced to writing and recorded, are those of the testator.

As under our system of admitting wills to probate, in the first instance, the court is only authorized to examine the witnesses to the will, and such other witnesses as any person interested in having the same admitted to -probate may desire, the effect of this claim is to preclude persons interested in resisting the probate from giving any evidence to contest the validity of the will, by showing that the tes•tamentary words were never spoken. Hathaway’s Will, 4 Ohio St. 383.

But the claim of the plaintiffs in error is founded on a misapprehension of the nature of the jurisdiction exei’■cised by the court in trying the contest of a will. The jurisdiction exercised in all such cases by the court and jury is virtually that of a court of probate, charged with the ■duty of finally establishing or rejecting the will. The proceeding to admit the will to probate in the first instance, 'is in its nature ex parte; the proceeding by contest is a suit ■inter partes. Mears v. Mears, 15 Ohio St. 96; Converse v. Starr, 23 Ohio St. 498.

Every fact wdiich is required to be proved, in order to admit the will to probate as valid, may, on the contest of the will, be disproved for the purpose of showing it to be invalid.

The statute provides that a verbal will shall be valid in respect to personal estate, under certain prescribed conditions. One of these conditions is that the verbal will shall have been reduced to writing within the time and in the manner prescribed.

Whether this condition, as well as the others required by the statute, had been complied with, were questions of fact to be submitted to the jury, on the evidence. The order of probate was prima facie evidence that the conditions had been complied with; but this prima facie case it was competent for the contestors to rebut and overcome by -other evidence.

The exception to the charge is, therefore, not well taken.

Leave refused.


author: By the Court.

text:
    Spence v. Basey et al.

      JL. brought an action to1 foreclose a mortgage executed by husband .and wife, in which he also prayed for a personal judgment against the husband. B., a defendant, filed an answer and cross-petition setting up the lien of a mortgage executed by the husband alone, in his favor, and prayed for án account and sale of the premises. After sale and the satisfaction of the plaintiff’s claim, the wife, as against B., demanded an allowance- ' in lieu of a homestead, which was granted and preferred to B.’s lien.. On appeal, the district court dismissed the same on the ground that an appeal in such case was not authorized by law: Held,.that the appeal was improperly dismissed.
    : Motion for leave to file a petition in error to tbe District. Court of -Clark county.
    The original action was brought by G. W. Miller against Don Basey and Elizabeth his wife, and others, to forecloseá mortgage executed by Basey and wife to secure the payment of a note, in which the plaintiff also prayed for a personal judgment against Basey, for the amount due on the note.
    George Spence, plaintiff in error, being a party defendant, answered, setting up a mortgage of indemnity executed to him by Basey alone, and prayed that the amount-of his'lien under the mortgage might be ascertained and its priority declared, etc. ' . ■
    The court found the mortgage of the plaintiff"to be the-first lien of the premises, and ordered a sale thereof.' A sale was made, and out of the proceeds the plaintiff’s lien was satisfied ; whereupon, Elizabeth Basey, as against the-lien of Spence, demanded the allowance of $500, in lieu of a homestead, under section 4 of the act of April 9,1869 (66 Ohio L. 48).
    The claim of Elizabeth for an allowance in lieu of a-homestead, out of the balance of the proceeds, was resisted by Spence. The court of common pleas, however, allowed to the wife of the mortgagor, in lieu of a homestead, the sum of $500, which, was preferred to the lien, of Spence; and thereupon Spence appealed from this.order to the district court, the balance of the proceeds of sale being insufficient to satisfy his claim.'
    In the district court, on motion, the appeal was dis-' missed on the ground that the district court had no jurisdiction of the case, it not being one in which an appeal was authorized.
    To reverse the order dismissing the appeal, the plaintiff' in error now asks leave to file his petition in error.

      Killer § White, for the motion :
    The case was not one for a jury trial, but for equitable' relief, and hence was appealable. 2 S. & C. 1147; Knoup v. Bank, 1 Ohio St. 603 ; Cooper v. Cooper, 24 Ohio St. 488;. Fleming v. Kirkendale, 31 Ohio St. 568.

      W. A. Scott and J. J. Hanna, contra,
    claimed that the-cause was not appealable,because not within the scope of the-statute (S. & S. 589).
    In order to be entitled to an appeal, it must • appear: 1st. That the judgment, order, or decree appealed from is a final one.
    The order in this ease, not relating to any of the issues-made in the case, it can not in any legal sense be final.
    No appeal was taken from the judgment or final order,. Tbut simply from a detached portion thereof, singled out by the appellant. 2d. The appeal must be taken in a civil action.
    ¥e admit that the original action was a civil one, but deny that the order or judgment attempted to be appealed, from was a civil action. 3d. The civil action must be appealed, and bring into the district court the original case-for retrial. (S. & S. 589.)
    But if the appeal was from a final order, judgment, or decree in a civil action, still there is no appeal, because the-matter was one which was triable by a jury. Ladd v. James,
      10 Ohio St. 438; Rowland v. Entrekin, 27 Ohio St. 47; Killer v. Wenzell, 23 Ohio St. 579.
   By the Court.

The appeal was improperly dismissed by •the district court. The order appealed from was a final order in a civil action, in which the parties affected thereby had not the right to demand a trial by jury. Section 5 of the act to relieve district courts, etc., as amended May 16, 1868 (S. & S. 589).

The case made by Spence in his answer and cross-petition was one for equitable relief only, and as between him .and the wife of the mortgagor, as the claimant of a homestead, there could have been no issue joined for the trial of which either party could have demanded a jury.

Motion granted, judgment reversed, and cause remanded to district court for further proceedings.


text:
    Grinnell et al. v. Adams et al.
    After the jurisdiction of county commissioners, in the matter of laying out or altering a county road, has attached by the filing of a proper petition, etc., such jurisdiction can not he defeated by any number of the petitioners afterward becoming remonstrants against the granting of the prayer of the petition.
    Motion for leave to file a petition in error to the District Court of Greene county.
    On appeal from an order of the county commissioners ■of Greene county, establishing an alteration in a county road, the probate court found “ that of the seventeen petitioners for said alteration of said road and the establishment thereof, fifteen were freeholders of said county, residing in the vicinity where said road was proposed to be altered; but that after said view had been made, and after the report of said viewers favorable to said proposed alteration had been made and filed, nine of said petitioners; signed their names, with the defendant, to a remonstrance against said alteration; and thereupon there being but nine freeholders left upon said petition, the court is of opinion that said county commissioners had no jurisdiction to establish said alteration in said road, and said petition is. therefore dismissed.”
    The court of common pleas, on error, affirmed the judgment of the probate court, but the district court reversed the judgment of the court of common pleas and the probate court.
    It is now sought to reverse the judgment of the district court.

      Nesbitt $ Martin, for the motion.

      J. J. Winans, contra.
   By the Court.

The proceedings before the county commissioners was under the act of January 27, 1853, entitled “ an act for opening and regulating roads and highways” (S. & C. 1289) and its amendments. The second section of the act, as amended April 16,1873 (Sayler’s St. 2956), provides “that all applications for laying out, altering, or vacating-any county road . . . shall be by petition to the county commissioners, signed by at least twelve freeholders of the county residing in the vicinity,” etc.

The filing of such petition, the giving of certain notice,, and the execution of a bond to pay the expenses, in case-the application shall fail, confer upon the county commissioners power to act in the premises, and the only question; now before us is, after jurisdiction is thus conferred and. assumed by the commissioners, is their power to proceed defeated by all or any number of such petitioners subsequently remonstrating against the prayer of the petition being granted ?

"We are unanimous in the opinion that this question must he answered in the negative.

In so holding, we do not undertake to overrule the case-of Hays v. Jones, 27 Ohio St. 218. That case involved the ■construction of a statute materially different from the act •of 1858.

Motion overruled.


author: Okey, J, Okey, J.

text:
    Clarke and another v. Thomas, Receiver of the Dayton Coal and Mining Company.
    1. By the act of 1861 (S. & S. 169, 170), the authority to increase capital stock possessed by manufacturing companies was conferred on mining corporations. The statute then in force conferring such power on manufacturing companies was the act of 1854 (S. & C. 369), which was repealed and re-enacted with material change in 1865 (S. & S. 237). Held, that a proceeding by a mining company, in 1868, to increase its capital stock, will be governed by the latter act.
    :2. When an increase of stock by a mining company has been determined on, in the manner provided by the act of 1865 ('S. & S. 237), and the stockholders decline to pay for part of the stock, the authority of the company to dispose of such stock is complete, and the agreement to take shares may be enforced by action, although the whole of the increased stock is never taken.
    ■ 3. Irregularities in the proceedings to increase the stock, or unauthorized provisions as to such stock, ex gr.a., that no notice of the meeting of stockholders' was given, that a part of the stock was declined by the stockholders without actual apportionment of it, or that the agreement contained a stipulation that the original stockholders should have part of the shares without paying for the same in money, will not defeat an action to recover on ajsubseription for such increased stock for the purpose of paying debts, where such subscriber, having knowledge of the facts, acquiesced until the company became insolvent.
    • 4. When a suit is brought by a receiver of an insolvent corporation, under the act of 1877 (S. & S. 237), against such subscriber, and judgment is rendered for the balance due, the court appointing the receiver has power to so control his conduct as to direct him to collect only such part of the judgment as will be the debtor’s fair proportion of the sum necessary to discharge the debts and adjust such rights as are properly to be determined in the suit in which the receiver was appointed.
    Error to the Superior Court of Montgomery county.
    Tbe action in the superior court was prosecuted by 'Thomas, receiver of the Dayton Coal and Mining Com■pany, a -corporation organized under the laws of Ohio, to recover a balance of three hundred dollars on their sub.s'cription for six shares of the company’s increased capital stock, each share being one hundred dollars. The answer contained statements as to the organization of the company and the steps to increase the capital stock, from which it was claimed that the subscription in question was illegal. A reply and amended reply were filed, containing averments, from which it is claimed that Olarke and Hawes are es-topped to deny their liability’-. Eighteen months after the answer was filed, Clarke and Hawes moved the court for leave to file an amended answer, but the motion was overruled, and they excepted. Judgment was rendered against them and in favor of the receiver, at the October term, 1875, of the superior court, for three hundred and five dollars, balance of the subscription, with interest, and they now ask that the judgment may be reversed, and they as-sign, among other causes for reversal, that the judgment is contrary to law.
    The facts found by the court or admitted, so far as it is necessary to state them, are as follows: On January 14, 1868, certain persons made a certificate for the incorporation of the Dayton Coal and Mining Company, and acknowledged it before a notary jmblic. The object of the ■ company was to mine coal in Belmont county, and transport and sell it, and do other things mentioned in the certificate. The capital stock was eight thousand dollars, divided into eighty shares of one hundred dollars each, and the principal office was fixed'at Dayton, Ohio. Immedi.ately thereafter the company organized and commenced business.
    On March 17, 1868, the company purchased the Hutchi•son coal mine, in Belmont county, with coal cars and other personal property, for eight thousand dollars. One-third •of the amount was paid in cash, and the balance was to be paid in coal at six cents per bushel, to be delivered at the ■mine at the rate of three car loads every week, each car to • contain three hundred bushels. The company took immedíate possession of the mine, and continued to mine coal therefrom for several years, until the company became insolvent, when the property was sold on execution to pay-debts. The weekly payments for the mine were made until March 1, 1870, and the balance, amounting to four thousand dollars, is unpaid.
    At the time the mine was purchased, the company was contemplating an increase of its capital stock to pay for the mine and afford means to carry on the business; and, in furtherance of this object, the board of directors, on March 21, 1868, passed a resolution in favor of such increase, so^ that the whole amount of stock should be five hundred and sixty shares of one hundred dollars each, on the terms and conditions hereinafter set forth in the writing signed by the-subscribers to the additional stock.
    On April 22, 1868, the resolution was submitted at a meeting of the stockholders, and approved by the vote of the holders of more than two-thirds of the stock. But no-notice of the meeting was published in any newspaper, although several newspapers were published at the time in the city of Dayton, where all the stockholders resided. All the stockholders, however, were personally notified, except one, and none of them ever objected, but, on the contrary, all acquiesced in the proceeding. The one who was not personally notified accepted the stock hereafter mentioned, which was allotted to him, and still retains it. Immediately following the meeting of the original stockholders, the directors apportioned among them, prorata, two-hundred and forty shares of the increased stock, and resolved that the remaining two hundred and forty shares should be sold. For the purpose of securing subscription to these shares, the directors, on April 26, 1868, prepared, and circulated a subscription book, containing the following agreement:
    “ Whereas, the Dayton Coal and Mining Company became a body corporate under the laws of Ohio, and organized with a capital of eight thousand dollars, divided into eighty shares of one hundred dollars each ; and, whereas,. the stockholders agreed and declared, at a meeting held for the purpose at the office of Dr. J. Wise, on April 22,1868, to-increase the capital stock to fifty-six thousand dollars, to be divided into five hundred and sixty shares of one hundred dollars each, and, by virtue of the increased value of said mining interest, appropriated and distributed, pro rata, among-themselves, three hundred and twenty shares, to which they regard themselves entitled as the original proprietors, of said interest, and have concluded, for the purpose of increasing their means in stocking and mining coal, and of' making coke, to put into market and dispose of the remain- ' ing two hundred and forty shares to other parties, at the-par value of one hundred dollars each, granting to each, shareholder the right and privilege of receiving, annually,, one hundred bushels of coal, at cost, for each share, as enjoyed by the original shareholders. The undersigned,, therefore, agree to take the number of shares annexed to-our respective names, paying for the same at the rate of one hundred dollars per share, in installments of ten percent., subject to the call of the president and directors of the company. Dayton, April 26, 1868.”
    The agreement was signed by Clarke and Hawes, who subscribed for six shares. Fifty-three others subscribed,, and the subscriptions amounted to ninety-eight shares of the increased capital stock. Some of the subscriptionswTere made before and some after the execution of the certificate of increase hereinafter mentioned. It does not appear how it was in that respect as to the subscription of' Clarke and Hawes.
    On June 3,1868, five of the seven directors, in pursuance of the resolution of the stockholders’ meeting, sigued and acknowledged before a notary public a certificate as follows :
    “ Dayton, Ohio, June 3, 1868. Whereas, John H. Winder, A. R. H. Folkerth, Josiah S. Broadwell, James Cling-ham, and William G-unckel, united in applying for a certificate of incorporation under the name and title of ‘ The Dayton Coal and Mining Company/ of the city of Dayton, In Montgomery county, Ohio ; and whereas, said certificate was issued to them on January 16, 1868, by which theybe•came a body corporate for the uses and purposes therein mamed, with a capital stock of eight thousand dollars ; and, ■whereas, the board of directoi’s elected pursuant to the provisions of the statutes of Ohio, did, at their regular meeting called for the purpose, on April 22, 1868, resolve •to increase their capital stock to fifty-six thousand dollars, .-and referred the same for confirmation to the stockholders’ meeting called for the purpose on April 22,1868, who voted to confirm the action of the board of directors in the premises. Now, therefore, the undersigned, president and directors of said Dayton Coal and Mining Company, do hereby make application to the secretary of state for said increase of the capital stock to the said sum of fifty-six thousand dollars, divided into five hundred and sixty shares •of one hundred dollars each.”
    Immediately thereafter the certificate was forwarded to “the secretary of state, and a copy thereof was forthwith returned by him to the company, accompanied by the following certificate: “ United States of America, secretary of state’s office. I, John Russell, secretary of the State of •Ohio, do hereby certify that the foregoing is a true copy of the certificate of increase of capital stock of the ‘ Dayton Coal and Mining company/ filed in this office June 6,1868. Tn testimony whereof, I have -hereunto subscribed my name and affixed the great seal of the State of Ohio, at Columbus, this 6th day of June, 1868. John Russell, secretary of state. [Seal.] ”
    The certificate so fqrwarded to the secretary of state was not verified by the affidavit of any person, nor was any copy forwarded to or recorded in the office of the recorder •of Montgomery county.
    No payment was ever made by the original stockholders for the two hundred and forty shares which were so apportioned to them, and it was not intended that they should make any payment therefor; and, at the time the certificate of increase was forwarded to the secretary of state, only ninety-eight of the two hundred and forty shares offered had been sold, and less than nine hundred and eighty dollars of the amount as subscribed had been paid.
    "When the certified copy of the certificate for increase was received from the secretary of state, thé company accepted the same as authority for such increase, and thereafter, through its directors, officers, and agents, and in its letter-heads, bill-heads, and advertisements published in Dayton, where all the stockholders resided, the company held itself out to the world as having a capital of fifty-six thousand dollars, and thereby it obtained an extensive ■credit, and, until December 28,1870, did a large and active business in mining and selling coal, and incurred a large indebtedness, of which over eight thousand dollars remain unpaid. While these representations wore openly made, no actual notice thereof was brought home to Clarke and Hawes, nor did it appear that they had represented themselves as stockholders to any creditor.
    Of the outstanding indebtedness, thirteen hundred dollars are due to the miners for work at the Hutchison mine, after the subscriptions for the increased stock were made. The miners, being about to stop work, were induced to continue upon the representations of the company’s agents that the capital stock amounted to fifty-six thousand dollars. Other parts of the indebtedness are for moneys advanced by the directors, salaries of officers, etc.
    After the subscription for the increased stock, the subscribers, among them Clarke and Hawes, were credited with the stock upon the books of the company, and certificates therefor were issued to such subscribers as called therefor; but the defendants below never asked for any certificate. In the organization and transactions of the company, and in the elections for directors, no difference was made between the holders of the increased stock and the original stockholders. All were accorded the same rights and privileges. At an election held January 4, 1869, three holders of increased stock were elected .direetors, and acted as such, and three other holders of the increased stock were elected at different times to fill vacancies in the board, and acted as such directors. During the last year the company carried on business, a majority of the directors were subscribers'to the increased stock alone.
    Clarke and Ilawes did not vote at any election for directors, hold any office -in the company, or take any active part as stockholders. They did, however, at various times, in common with the other stockholders, receive coal from the company at cost, and at a less price than the company sold to strangers, by virtue of the directors’ recognition of their membership. And the president and directors having made calls, from time to time, for installments of the subscription, the defendants below, between June 1 and October 6, 1868, paid five installments, amounting to three hundred dolla'rs ; and at no time previous to December 28,1870, when the company became insolvent, did they claim or make known any defense against their liability to-pay their subscription, and they never objected, until that time, to anything done by' the company or the directors.
    On December 28, 1870, the board of directors met pursuant to the call of Samuel Marshall, president. There were present Samuel Marshall, John 0. Baird, John Cling-man, Eli Thompson, and T. J. Eaulkner; and, on motion, the following resolution was adopted : “ Resolved, by the acting board of directors of the Dayton Coal and Mining Company, that, in view of the condition of the affairs of this corporation, and the management of its affairs, we deem it for the benefit of the creditors and stockholders thereof that a receiver be appointed to take the management of the affairs and property of said company, under the direction of the superior court of this county, in pursuance of the statute in such case made and provided; and that we recommend the appointment of Dr. John "Wise as such receiver.”
    Thereafter, December 28,1870, John Clingman, John C. Baird, Elihu Thompson, Samuel Marshall, and Thomas J. Eaulkner, five of the seven directors, filed in the superior court an ex parte petition, representing the company to be insolvent, and praying for a dissolution thereof, under the act entitled “ an act to provide for the voluntary dissolution of corporations,” passed April 15, 1867 (S. & S. 243). But, objection being made'tb the sufficiency of the petition and the inventories appended thereto, the petition was held to be insufficient, and an amended petition was filed by Clingman, Baird, Thompson, and Marshall, and the juris•diction and proceedings of the court were based thereon. In the petition in the case here under review, it is stated that they were a majority of the directors “having management of the concerns of said corporation.”
    At the time the amended petition was filed by Baird and •others, as above stated, Baird and Thompson had sold their stock, and were no longer stockholders in the company; but they had continued, without objection from ¡my person, to act as directors. Thompson was secretary, and had possession and charge of the books, and Baird was treasurer, and had possession and charge of the accounts. Trebein, who had been a director, had long ceased to act as .such: The plaintiffs in the amended petition composed a majority of the last-elected board of directors, and were then acting as directors, and were the only officers having the management of the affairs of the company.
    Such proceedings were had under the amended petition, that the superior court, at its October term, 1872, made a ■decree dissolving the corporation, and appointing Alfred A. Thomas receiver thereof.

      Young &¡ G-ottschall, for plaintiff in error:
    1. The steps to authorize an increase of stock never .having been taken, the corporation could not dispose of •stock beyond the amount stated in its charter. 2 Redfield on R. R. 502; 10 How. P. R. 543; 6 Pick. 23; 34 N. Y. 30 ; 30 Conn. 231; 9 Mich. 448 ; 15 Ohio St. 31; 11 Ohio, :96 ; 17 Ohio, 349 ; 1 Ohio St. 41; 12 Ohio St. 601; 10 Ohio, 109 ; 5 Ohio St. 59; 8 Ohio, 286; 9 Ohio St. 27-33; 4 Wheat. 518; 11 Ohio, 487; Angelí & Ames on Corporations, § 527; Essex I. Co. v. Collins, 8 Mass. 299; 7 Johns. 112; McCord v. O. & M. R. R. Co., 13 Ind. 223; 1 Sup. Ct. Rep. 354.
    2. As against the defense ultra vires by a corporation, there can be no estoppel. A contract which is ultra vires is absolutely void, and can not be rendered valid by the aid of the doctrine of estoppel. Hood v. N. Y. & N. H. R. R. Co., 22 Conn. 502; Mechanics’ Bank v. N. Y. & N. H. R. R. Co., 13 N. Y. (3 Neman) 599; P. J). ft M. S. Navigation Co. v. Dandridge, 8 Gill, and Johns. 248; N. Y. & N. H. R. R. v. Schuyler, 38 Barb. 534; Treadwell v. Com. Hancock Co., 11 Ohio St. 183; Hopple v. Trustees of Brown Tp., 13 Ohio St. 311; Angell & Ames on Corporations, § 256; 2 Redfield on Railways (3d ed.), 502, note, and 503 ; 1 Ib. 617, § 8; 5 Am. Law Review, 272, article “ Ultra Vires;” Herrman on Estoppel, § 540, p. 510, and § 503; Dillon on Municipal Corp. (2d ed.), § 381 and note; Ib., §§ 382, 206 (note), 749, 766, 767, and 768; 18 Barb. 312; 39 Ind. 95 ; O. & L. R. R. Co. v. Veasi, 39 Maine, 571; New Orleans, etc., R. R. Co. v. Harris, 27 Miss. 517, 541; Lewis v. Bank of Ky., 12 Ohio, 147.
    Erom these cases, it appeal’s that where the contract is-absolutely ultra vires, the consent or acquiescence of all the stockholders will not make it valid. See 5 Am. L. R. 277; A. & A. on Corp., § 256; 22 Conn. 510; and 10 How. Pr.,. 543, supra.

    There can be. no estoppel, because there was no legal' possibility. There can be no consent to a legal impossibility, and “ where there is no legal power, an attempt to act can he followed by no legal consequence.” 3 Ohio, 240, cited ; 13 Ohio St. 322.
    Where the contract is ultra vires, the corporation can not even be estopped by deed or matter of record. 2 Redfield’» R. R. 595 ; Bigelow on Estoppel, 283 ; Herrman on Estoppel, § 541; 2 Washburn, R. E. (2d ed.) 484; 6 Ohio, 366;, 5 Ohio, 190.
    To the rule thus established, there is only this exception r. “ That a private corporation will be estopped to-set up the-defense ultra vires in respect to all acts and contracts within the apparent scope of its powers; and that both public and private corporations will be estopped to set up such defects in their establishment or organization, or in the preliminaries to the executions of their acts, as are peculiarly within their own knowledge, and notice of which can not be justly imputed to the other party.” Bigelow on Estoppel, 466.
    As, for instance, when a corporation has power to do an act, it may be estopped from denying that the form adopted was not the precise mode prescribed by the charter (Herman on Estoppel, §§ 563 and 543); or where the act in its external aspect is within the general powers of the company, and is only unauthorized because done with a secret unauthorized intent, as where a railroad company having pow'er to purchase iron for its roadway, buys it for speculation, and with the concealed intent to sell again (5 Am. Law Review, 282, 283); or where, as in Eaton v. Aspinwall, 13 How. 184, and 19 N. Y. 119, the defect is the want of a sufficient preliminary subscription, an act of omission which could only be proved by testimony, and which was not a prerequisite to be publicly- declared and recorded ; but where, as in this ease, the act (the increase of stock) must be “ publicly declared and recorded,” thereby imputing notice to all the world, there is no exception which will permit an estoppel to the defense ultra vires.

    And this defense is equally available to the other party to the contract. Bigelow on Estoppel, 467; Herrman on Estoppel, § 543 ; Dillon on Municipal Corporations, § 382, p. 474. It would seem to be unnecessary to cite authorities in support of this proposition, because it is well understood that there must be mutuality in estoppels, as well as in • contracts.
    A large number of cases cited by plaintiff below do not seem to us to be pertinent to the question we are now discussing. They only establish this proposition, and nothing more, viz: That the corporate existence can not be denied or impeached, or its forfeiture established : a. By a stockholder collaterally, b. By a party who has received its funds or •other property, and given his obligations therefor, c. By •a corporator who has aided to put the corporation in existence, or by the company, or its members, after having organized and acted as a corporation, and entered into the contract upon which the suit' is brought, d. By a stockholder sued to enforce his individual liability, who has participated in its acts of user as a. corporation de facto, and appeared as a stockholder upon its books when the debt for which he is sued was contracted.

    We are not here seeking to deny the corporate existence of the plaintiff’s company; but, admitting such corporate existence, we assert that the contract sued upon is one which the company had not the power to make. That is a question entirely different from any raised or decided in the above class of cases.
    That this defense can not be estopped will be further apparent when we come to examine the following cases in which it has been sustained : 8 Ohio, 257-289 ; 10 Ohio, 108; 13 Ohio, 1; 20 Ohio, 303, note ; 5 Ohio St. 59 ; 9 Ohio St. 27 ; 8 Ser. & R. 219 ; 14 lb. 434 ■ 9 Mich. 269; 7 Wend. 31; 3 Wend. 483, 573.
    This is not a suit to charge defendants with some liability as stockholders, but to hold them liable on their contract to become stockholders. The plaintiff must recover upon the contract, or not at all, and the contract being ultra vires, is no contract in law, and therefore can not be aided by estoppel.
    To establish an equitable estoppel, or estoppel in pais, it must be shown : a. That the defendants made some admission or did some act, with the intention of influencing the conduct of the corporation, or its creditor's, or which they had reason- to believe, as men of ordinary prudence, would influence their conduct inconsistent with the defense they propose to make. b. That said parties acted upon or were influenced by such act or admission, c. That said parties will be injured by allowing the truth of such admission to be disproved. Bigelow, 600 ; Herrman, § 323 ; 7 Ohio St. 99-105 ; 14 Ohio St. 109-119.

      Estoppels in pais are not allowed to operate except in good conscience and honest dealing, the party ought not to be permitted to gainsay his admissions; and, in general, the act or declaration of the party must be willful, that is, with'knowledge of the facts upon which any right he may have must depend, or with the intention to deceive the •other party. McAfferty v. Conover, 7 Ohio St. 105 ; Bigelow on Estoppels, 480.
    And such estoppels will only operate in favor of those whose conduct they were intended to influence, and not in favor of strangers who have casually heard declarations on faith of which they have acted. Morgan v. Spangler, 14 Ohio St. 102, 119 ; and, in general, denials of former acts should amount to a fraud to- constitute an estoppel. 49 Mo. 231. All these elements are plainly wanting in this case.
    Persons dealing with the managers of a corporation must take notice of the limitations imposed upon their authority by law. Pearce v. Madison & Ind. R. R. Co., 21 How. (S. C.), 441-443; cited 11 Ohio St. 192 ; Dillon on Municipal Law, § 381 and note page 373; 5 Am. Law Review, 287 ; Herrman on Es., § 543; 13 Ohio St. 331.

      Alfred A. Thomas and D. A. Haynes, for defendant in error:
    The plaintiffs in error, having paid installments of their subscription, received benefit from their contract with the company, and acquiesced in the acts of the company until it became insolvent, are estopped to deny their liability, notwithstanding the irregularities in the proceedings with respect to the increased stock. Green’s Brice’s Ultra Vi-res, 351, 444U591; Ang. & Am. on Oorp. 235, 251,498, 523, ■529 ; Black River v. Utica Railroad, 25 N. Y. 209; Steam Navigation Co. v. Weed, 17 Barb. 308; Mokelumme, etc., Mining Co. v. Woodbury, 14 Cal. 424; Chamberlain v. Railroad Co., 15 Ohio St. 250 ; People v. Peck, 11 Wend. 694; Chester Glass Co. v. Dewey, 16 Mass. 94; Jackson v. Croy, 12 John. 427 ; Samuel v. Holladay, Woolworth (C. C.) 400;
      D. W. Co. v. Coy, 13 Ohio St. 91; Phillips v. Davis, 11 Mass. 113; Amhurst Academy v. Cowles, 6 Pick. 434; Zabrinski v. C. C. & I. C. Co., 23 How. (U. S.), 381; Bissell v.. Jeffersonville, 22 How. (U. S.), 300 ; Upton v. Jackson, 4 Ins. L. J. 189; Bank of U. S. v. Dandridge, 12 Wheat. 71; Owen v. Purdy, 12 Ohio St. 73; Callender v. Painesville, etc., R. Co., 11 Ohio St. 520; Warner v. Callender, 20 Ohio St. 197; Hagerman v. O. B. & L. Association, 25 Ohio St. 186; Bradley v. Ballard, 55 Ill. 413; Argenti v. San Francisco, 16 Cal. 256; Bissell v. Michigan S., etc., R. Co., 22 N. Y. 259; Methodist E. Church v. Pickett, 19 N. Y. 485; Eaton v. Aspinwall, 18 N. Y. 119; Buffalo & A. R. Co. v. Cary, 26 N. Y. 75; 15 Wend. 314; 16 Md. 423 ; 25 Pa. St. 157; 30 Conn. 556; 16 S. & R. 140.
   Okey, J,

Objection is made that it does not appear by tbe petition that the superior court had jurisdiction to appoint the receiver; but we think the court had jurisdiction to make the appointment in the manner it was made, and that mere irregularities as to the form in which jurisdiction was invoked can not be inquired into in this collateral way. The proceedings, indeed, are substantially in the form generally pursued. Godley v. Pugh, 29 Ohio St. 438. And the-objection that Baird and Thompson were not directors de jure is of no avail. They were directors defacto, and their acts were valid. Bartholomew v. Bentley, 1 Ohio St. 37, is-an extreme case, and in no way opposed to this view.

The defendants below moved the court for leave to file an amended answer, and the motion was overruled. The original answer had then been on file more than eighteen months. There can be no interference with the decision of matters of that sort, unless the record discloses manifest abuse of discretion, and here no such abuse is shown.

As to the form of the pleadings, concerning which there-has been much discussion, it is sufficient to say there.is no error in that regard for which we are willing to disturb the findings; that the issues are broad enough to support the-findings;. and that no actual fraud being shown, the question is, whether in matter of law the defendants below are-liable on their subscription, on the facts found by the superior court, or admitted.

The certificate of incorporation was acknowledged before a notary public. The statute required that it “ be acknowledged before a justice of the peace.” The State ex rel. v. Lee, 21 Ohio St. 662. Whether the defect could have been cured without a proceeding for the purpose under the act of 1859 (2 S. & C. 1172; Const., art. 2, § 28), or whether it was cured by force of the act of 1872 (69' Ohio L. 14), we need not determine, for the defendants below were estopped from setting up the defense. Lucas v. Greenville B. & S. Association, 22 Ohio St. 339.

The principal questions to be determined involve a construction of the acts relating to the increase of capital stock, and an act which is sometimes called the wincling-upact.

The act of 1861 (S. & S. 169), in force when the steps to increase the stock were taken, but now repealed (74-Ohio L. 183), provided, among other things, that a mining corporation, “ when organized, shall be a body corporate, having all the privileges, immunities, and powers conferred upon manufacturing companies, and shall be governed in all respects by the provisions of said (general corporation) act, and the other acts supplementary and amendatory thereto.” 1 S. & 0.271. Notwithstanding the strict construction given to the same language in the act of 1856-(Miami Coal Co. v. Wigton, 19 Ohio St. 560), we do not doubt this provision conferred on mining corporations the-same power to increase stock that had been conferred on manufacturing corporations by the act of 1854 (1 S. & C. 369) which was repealed in 1865 (S. & 0. 237). The act of 1872 (69 Ohio L.24), amended in 1873 (70 Ohio L. 37), conferred no new power in this respect.

■ The question arises whether the case is governed by the-act of 1854 or the act of 1865. In Stall v. Macalester, 9 Ohio, 19, it was held that express reference in an act to a specified statute for the form to be observed in proceedings under the act, virtually incorporates the old statute into the new, and that if the former be in general terms repealed, it will, nevertheless, remain in force as to proceedings under the act. But where; as in this case, the reference is general to an original and supplementary and .amendatory acts, we must look to the law delegating the power and regulating the mode of its exercise in force at the time the power is invoked. Kugler’s Appeal, 55 Penn. St. 123.

The statute to be construed, then, is the act of 1865 (S. .& S. 237). Changes have been made in it (69 Ohio L. 24), but they do not affect this case. That act, thus made applicable to mining companies (S. & S. 169, 170), provides that if the directors desire to increase the capital stock, they shall call a meeting of the stockholders, giving at least thirty days’ previous notice in some newspaper published at the company’s place of business, or, if none be published there, then by notice personally, or by mail, to each stockholder. If the stockholders owning two-thirds of the stock vote in favor of the increase, the directors shall apportion the increase, pro rata, to the stockholders, in proportion to their stock; and failure for thirty days to pay for the stock so apportioned is a declination of the right to take it, which gives the directors power to dispose of it ■otherwise, as the by-laws may prescribe.

“ Sec. 4. Upon the full payment in-money of such inurease of capital, the directors shall, under their hands, and verified by their affidavit, or that of a majority of them, certify the same to the officer designated for that purpose by the law under which said company was organized, who shall ■dispose thereof in the manner provided by law for the original certificate of the organization of such company. Each certificate of such increase shall distinctly state that the whole amount thereof has been paid to such company, .and that no note, bill, bond, or other security has been taken for any part thereof, and that the credit of such company has not been used, directly or indirectly, to raise the funds to pay the same, or any part thereof.”

The stockholders are also individually liable, under the-same act, to a further sum equal in amount to their stock,. “ and any unpaid installments thereonand they are liable, moreovei’, individually, for all debts due to the employes.

To properly construe this act is a task not free from difficulty. Are the steps to increase the capital stock ineffectual, unless the whole amount of the increase determined on is actually paid to the company in money, and the certificate contemplated in the act is furnished ? If that is the pi’oper construction, one who pays money for stock would have no other right, in case the whole of the increase-is not taken, than to recover from the company the amount paid. We do not think we are required so to hold; but,, on the contrary, a fair construction of the act, in connection with other statutes, seems to be that when, at a meeting called as provided in section 2, the stockholders owning two-thirds of .the capital stock vote in favor of the increase, and, the stock having been apportioned, a stockholder refuses for thirty days to pay the corporation for the-portion of stock allotted to him, or any part of.it, “the directors may dispose of the same in such manner as the by-laws thereof may prescribe.” The capacity of the company to' dispose of the stock is complete on such refusal, and the contract of one who thus agrees to take any part of such increased capital stock may be enforced against him. It follows that when he pays the money he becomes-a stockholder to the extent of his shares, even if the residue of the increased stock is never taken. Of course, as the whole amount voted by the stockholders in this case was never subscribed, there was no authority to make the certificate provided for in section 4 ; but the steps there provided are simply to afford evidence that the proceeding to-increase the amount of the capital stock, to the full extent voted by the subscribers, has been consummated, so that the fact may be properly made known to the public ; and, until that is done, the company can not rightfully transact business on the basis of such increased capital. Whether ■the act of 1854 (1 S. & 0. 369), was susceptible of the same .•construction is more doubtful.

While, therefore, an agreement regularly made to take .shares of such increased stock would be mutually binding ■ on the company and the subscriber, even if the whole im crease voted is never taken, it is not to be denied that the proceedings in this case were irregular. We will not determine whether the state alone can set up these irregularities (as to which see Pullman v. Upton, 96 U. S. 328), but •whether, notwithstanding such irregularity, the agreement-may be enforced against the subscribers. No notice of the •stockholders’ meeting was published. Only part of the increased stock was apportioned to the original stockholders; .and, besides, the new as well as old subscribers understood that the part so apportioned was not to be paid for. The remaining shares were offered for sale to any who would subscribe, without apportionment, and without delay ; and so far the statute was disregarded. But the existence of these irregularities is not decisive of the question as to the validity of the subscription. •

The record shows that Clarke & Hawes — indeed, all the ¡■subscribers to the increased stock, except one — had actual notice of the stockholders’ meeting at which the increase was voted, and the one who had no actual notice accepted the stock apportioned to him and still retains it. The in.strument subscribed by the plaintiffs in error contained the information, that two hundred and forty shares of the increased stock had been divided among the original stockholders, who were not to pay for the same. The plaintiffs in ■ error were credited with their stock on the books of the company, and it has stood in their names ever since they made the subscription. They made repeated payments of installments to the directors, without objection. They received • coal from the company at reduced rates, in accordance with their contract of subscription and by reason of their ownership of the stock. They were deprived of no right accorded to other stockholders. They were aware, we think, that the company was representing that its capital stock was ■.fifty-six thousand dollars, and that their subscription was part of that amount. Debts were contracted on the faith -of the increased stock. If they did not know the fact, it •was their own fault. Certain it is, that they made no protest, no complaint, during the time when the company was prosperous. Equally certain it is, that now, when the company is insolvent, they will not be heard to protest or complain. Trumbull Co. M. F. I. Co. v. Horner, 17 Ohio, 407; Voorhees v. Receiver, etc., 19 Ohio, 463; Upton v. Hansborough, 3 Bissell, 417; Paysen v. Withers, 5 Bissell, 269; Paysen v. Stoever, 2 Dillon, 427 ; Upton v. Tribilcock, Sanger v. Upton, 91 U. S. 45, 56; Craig v. Cumberland, etc. School, 72 Penn. St. 46 ; Greene’s Brice on Ultra Vires, 444, et seq. Nor are we prepared to say that the original stockholders are not liable for the two hundred and forty shares which they appropriated to their own use. It will be time enough to -decide that question when it is directly presented.

The powers and duties of the receiver are all defined in the winding up act of 1867. S. & S. 243; 72 Ohio Laws 139. It is his duty, among other things, to collect all outstanding liabilities, including moneys due from subscribers for stock; but the company is dissolved as an insolvent corporation, and collections from stockholders are only made for the purpose of paying the liabilities, and adjusting the affairs of the corporation. The receiver is the officer of the court, and at all times subject to its order and direction; and while the judgment at law, rendered against the plaintiffs in error will be permitted to stand, it will be the duty of the court to see that no injustice is done to them. All other responsible persons indebted to the corporation for stock, should be compelled to contribute, so that no stockholder, in the payment of the debts, and adjusting the affairs of this insolvent corporation, will be compelled to pay more than his just proportion. Sanger v. Upton, supra. Manifestly it would be a less burden on these debtors for the receiver to collect from them only their just proportion than to collect the whole amount for which they are liable, and refund to them the excess on final settlement and distribution. But that matter must be left to the discretion of the court having control of the conduct of the receiver. Nor do we decide whether the rights of stockholders, inter sese,. may be determined in that proceeding.

Young Gottsehall, for plaintiffs in error.

A. A. Thomas and D. A. Haynes, for defendants in error.

Judgment affirmed,.

H. Eerneding & Son v. Alfred A. Thomas, Receiver.

Jacob S. Gary v. Same.

William Sander v. Same.

Error to the Superior Court of Montgomery county.

Okey, J.

Judgments affirmed.