text:
    Dingman v. Dingman.
    Land was devised to D., who was married, charged with the payment of a legacy to the sisters of D. ' An action, was prosecuted to enforce the lien of a judgment against B., rendered during coverture, iu which the legates were made parties hut filed no answer or cross petition. Upon default by all the defendants, a decree was rendered in favor of the plaintiffs, ordering the sale of the land in default of payment, and in case of sale, that out of the proceeds the amount of legacies he paid. The land was sold under such decree to one of the plaintiffs and the proceeds distributed as directed therein. The wife of D. was not made a party to the action. Upon the-death of B. she filed her petition for dower.

      Meld: She is not barred by such proceedings and sale from her dower in the premisos, and a decree in her action which exempts from her claim sufficient in value of the land sold to pay the legacies, and awards her dower in the balance, is no”t prejudicial to such purchaser, for which the decree will be reversed. Whether such exemption was necessary, quere?

    Error to the District Court of Shelby County.
    Daniel Y. Dingman, Sr., died, leaving a certain' tract of land in Shelby county, which he, by bis will, .devised to bis four sons, Daniel Y., George TV., Francis A., and James TV., husband of defendant in error. Francis A. died before the' testator, without heirs of his body, and under said will said lands went to the. other three sons named. The said Daniel Y. Dingman, Sr., by bis said will, also devised $5.00 to each of five daughters therein named, and required the sons to whom the land was devised to pay the legacies to the daughters, and charged the lands devised to the sons 'with the payment of said legacies.
    On November 11, 1861, Daniel Y. Dingman, plaintiff in error, commenced a proceeding against George TV. Dingman and Jamos W. Dingman, husband of defendant in error, for the partition of the land devised to them by their father, and partition was made, which was confirmed February 8, 1862, setting apart in severalty to James W. Dingman, husband of defendant in error, the one hundred and twenty-five acres of land described in the original petition in this case filed by Mary J. Dingman, defendant ¿n error.
    In 1863 a construction was given to said will by the court of common pleas of Shelby county, and it was decreed by said court “ that the bequest of $500 to each daughter is to be paid in. equal proportions by the three surviving sons, and is a charge on their lands.....The surviving daughters will be entitled each to one-fourth, or $125, her share of the bequest to deceased daughter. ”
    On April 9, 1861, D. V. Dingman and II. Thompson, executors of the will of Daniel Y. Dingman, deceased, recovered a judgment against James W. Dingman, husband of defendant in error, in Shelby common pleas, for $2,27421.
    In 1861, Daniel Y. Dingman and II. Thompson, executors of the will of Daniel Y. Dingman, deceased, filed a petition against James "W. Dingman, husband of defendant in error, and others, setting forth the various judgments and other liens on the land, including the said charge in favor of the daughters of the decedent, and praying for the sale of the land to pay the said charge, and to satisfy the judgment in favor of the executors.
    No answer or cross petition was filed by the sisters, the legatees, although they were made parties defendant. December 8, 1861, decree was rendered, finding the amount due plaintiffs, and that the allegations of the petition were true. It then proceeds : “ It is therefore decreed by the court that said lands in plaintiff’s said petition described be appraised, advertised and sold as upon execution, clear of incumbrance, as prayed for in said petition ; that a writ issue to the sheriff of said county, commanding him to cause said sale to be made according to law; that he bring the money arising from said sale into court, to be applied under the order of the court; first, to the payment of any taxes' which may exist on said premises; second, to the costs of this proceeding; third, to render unto the said Elizabeth Quinn, Priscilla Dingman, Mary Dingman and Amanda Dingman $833.33$, with interest on $208.33$ thereof from the 4th day of April, 1862, and interest on $208.33$ thereof from the 4th day of April, 1863, and interest on $208.33$ thereof from 4th day of April, 1864 ; fourth, to pay the costs in the partition case of Daniel V. Dingman, Jr., against George W. Dingman and the said James W. Dingman, which were adjudged against the said James W. Dingman, as stated in the plaintiff’s petition; fifth, to the payment of the plaintiff’s said judgment, as stated in their said petition, together with interest and costs; sixth, and the surplus, if any, to abide the further order of this court.”
    Sale of the one hundred and twenty-five acres of land was made January 23, 1865, to Daniel V. Dingman, plaintiff in error, and on the 4th day of February, 1865, said sale was confirmed, the daughters of the decedent receiving on the distribution of the proceeds of such sale $899.45, the amount of their charge on the land with the interest thereon. The land was sold for $6500.
    Mary J. Dingman, defendant in error, was not a party to, or served with process in any of the foregoing proceedings. In 1877 she filed her petition in Shelby common pleas against Daniel Y. Dingman, asking to have dower decreed and assigned to her in said one hundred and twenty-five acres of land that had been set off to her husband, James W. Dingman, in the partition case aforesaid, and sold to Daniel Y. under the proceeding before mentioned.
    To which petition the defendant filed the following answer: “Defendant denies that petitioner is entitled to dower in said px'emises, in the petition described, or any part thereof. He denies that said James W. Dingman -was seised of any estate whatever in said lands, or any portion thereof, at any time during coverture with this plaintiff.”
    The case went to trial upon the issue thus presented and the court decreed her dower in fifty-six sixty-fifths of the land.
    The defendant below appealed the case to the district court, and on March 28,1879, said court made the same decree that was made in the common pleas. Daniel Y. Dingman took a bill of exceptions, and has filed his petition in error, seeking to reverse the judgment and decree of the district court.

      J. 8. OonTclin and Harrison Wilson, for plaintiff in error, claimed:
    I. The executors had power under the statute to sell these lands to pay the legacies which, by the terms of the will, were made a charge upon them. S. & C. 596, § 156.
    II. In their action to sell the lands these legatees were properly made parties defendant; but, their rights being set out “in extenso” in the petition, no answer was by them filed, and none was necessary to entitle them to the relief prayed for in their behalf. S. & O. 590, § 122.
    III. If any one of the liens set out in the petition precluded dower, while others did not, and decree was had upon all, the purchaser at the sale under such decree took the title free of dower. 27 Ohio St. 464, 512; 2 Scribner on Dower, 607,608.
    1Y. The defendant in error was not a necessary party in the action. If she had been made a party, her only right would have been to redeem as against these legacies, which precluded dower, or, under the modern “ Ohio notion,” to have had the estimated value of her inchoate right carved out of the proceeds of sale. These rights she has now. But without such redemption, and in the absence of payment by herself or husband, she is not entitled to dower now and was not then. 30 Ohio St. 196; 32 Ohio St. 210.
    Y. Courts will construe liberally the powers of sale given by statute to executors, and will favor the title of the purchaser, derived from such sale.
    YI. The decree for dower in the court below, being for dower in the undivided fifty-six sixty-fifths of the lands of the deceased husband, is inconsistent, an absurdity in law, and impossible of execution. If the plaintiff below is endowed at all in the lands of her husband, she is endowed in every part of it, and cannot be in an undivided part of the whole of his interest.

      W. D. Davis, for defendant in error :
    I. Dingman held a complete legal title to the land, coupled with a beneficial interest, and his wife was dowable therein.
    1 Scribner on Dower, 393; 4 Kent’s Com. 45, 46, tojo paging ; Greene v. Greene, 1 Ohio, 542; Derush v. Brown, 8 Ohio, 415.
    II. Even if-the land had been sold under a proceeding to enforce the charge in favor of the sisters of James W., the right of dower of defendant in error would not thereby bo defeated, for the reason that the legacies charged on the land did not constitute a lien that precluded dower.
    III. And, as a matter of fact, said land was not sold under a proceeding to enforce the charge in favor of the sisters of James W. Dingman. The charge in favor of the sisters could not, in any event, preclude the widow’s right of dower. It did not rise to the dignity of a mortgage that would preclude dower, and did not have any greater or higher dignity than a mere judgment lien.
    IV. We insist that the legacies charged on the land in favor of the daughters of the decedent did not preclude dower in favor of Mary J. Dingman, widow of James W., who is now claiming the same, even if the land had been sold in a proceeding to enforce said charge; but we claim the land was not sold to enforce the charge. It must be borne in mind that Mary J. Dingman, defendant in error-, was not a party to this proceeding. The proceeding was not one to enforce the charge. The sisters were made defendants in the case as persons having a lien or claim on the premises, that they might become the recipients of so much of the proceeds of such sale as they were entitled to. Taylor v. Fowler, 18 Ohio, 567; Ketchum v. Shaw, 28 Ohio St. 506; Parmenter v. Binkley, 28 Ohio St. 32.
    V. There can be no difficulty in executing the decree. . Dower can easily be assigned in the fifty-six sixty-fifths, and if there was error in not decreeing her dower in the whole of the land, it is a sufficient answer to say it is an error of which the plaintiff in error can not take advantage, as it does not prejudice him. On this proposition it would be a vain thing to cite authorities.
   Doyle, J.

It is conceded in argument that James W. Dingman had, during coverture, an estate of inheritance in the lands in controversy. He was seised of the legal title in fee-simple, charged with a lien in favor of the legatees.

Under the first clause of the statutes, S. and C. 516, § 1, on the concurrence of marriage and seisin, the wife became invested with dower inchoate, and had there been no lien upon or interest in the land superior thereto, on the death of the husband she would have been entitled to an assignment of dower out of the whole of the land. The entire interest of the husband, both legal and equitable, was sold during coverture, but, as -we shall see, sold under a decree to enforce a lien which affected the husband's interest alone.

The question presented is, whether the proceedings and sale, in the action of the executors against the husband and others, were sufficient to bar the dower of the wife, which was then inchoate.

The action by the executors, it must be remembered was not to sell the land as pari of the estate of the testator for the payment of debts or legacies, but was an action against James W. Dingman to enforce the lien of a judgment against his lands upon a claim due from him to the estate. The executors were not charged with the payment of the legacies, and were not aulhorized, nor did they attempt, to enforce the lien of the legatees in the action under which the land was sold.

We have no doubt that the lien of the legatees was superior to the dower of the wife. If the land had been sold under a decree of the court, in an action prosecuted to enfoice that lien, either by petition or cross petition to which she was properly made a party, it might be difficult to hold that she was not barred of her dower in the whole land, whatever her rights might be in the surplus of the purchase money, left after paying such lien, the sale being made during the life of her husband. See Taylor v. Fowler, 18 Ohio, 569; Unger v. Leiter, 32 Ohio St. 210; Black v. Fuhlman, 30 Ohio St. 196.

In such action, however, she might have the right, where, as in the case at bar, the value of the land was greatly in excess of the amount of the lien, to show that fact, and, if it could be done without injury to any of the parties interested, to require that enough of the land be sold to pay the lien free from her dower, leaving it unaffected in the remainder. The failure to make her a party cannot have the effect of placing her in a worse position. That she was a necessary party in order to foreclose her rights has been frequently held by this court.

In Ketchum v. Shaw, 28 Ohio St. 506, it was held “ where a wife has joined in a mortgage foreclosed during the lifetime of her husband, she not being made a party, after his death she has the right to redeem the mortgage, and then have her dower out of the property. Dower inchoate is not an estate, but it is nevertheless ’ a right or interest in land of which a wife may not be deprived except by proceedings to which she has been made a party.” To.the same effect is McArthur v. Franklin, 15 Ohio St. 506; 16 Ohio St. 196; and Parmenter v. Binckley, 28 Ohio St. 32.

If the husband is seised of a legal estate of inheritance during ^overture, it 'cannot make any difference whether that estate is charged with a lien, -which is superior to the inchoate dower of the wife, by reason of some fact or occurrence to which her assent was not necessary, as in the -case at bar, or because of a mortgage in which she joins with her husband releasing her dower. In either case the lien is paramount to her dower to the extent of it, and must bo first satisfied out of the land before dower can be assigned.

Mary J. Dingman was not a party to the action under which the land was sold. The claim, to enforce which the executors brought their action, was a judgment against the husband, taken during coverture, for the payment of which her interest in the land wras not liable. If there were no liens upon the land superior to her inchoate dower, to be enforced in the action, she would in no sense be a proper party. 28 Ohio St. 35. The legatees were not attempting to enforce the lien which they had for. the amount of the legacies. It is true they were made parties- defendant, and the petition of the executors stated the nature and extent of their interest; but no answer or cross petition was filed by them, and no affirmative decree was or could be granted to them in the absence of such cross petition. Tlie decree ordered that in case the amount found due the plaintiffs was not paid the land should be sold, and in case of sale, • out of the proceeds, the lien of the legatees should be paid.

But the sale made under such decree can in no sense be said to be in an action to enforce a lien, superior to the inchoate interest of the wife, which will remit her to the surplus proceeds of the sale. The most that can be claimed (if indeed that can be), is that the purchaser, the legacies being paid out of the purchase-money, is subrogated to the rights of the legatees as against the widow. It is entirely evident that if the decree in favor of the executors, which did not preclude the dower of the wife, was paid, the entire decree was satisfied. No other party to it could have the land sold under it.

The case, therefore, in this respect is determined by Parmenter v. Binkley, supra. In that case Binkley, the husband, executed a mortgage to Day & Matlack in which the wife did not join, and also one to Peter Face, in which she did join. Day & Matlack, filed a petition against Binkley to foreclose, making Face, Mrs. Binkley and sundry judgment creditors of the husband parties. Face filed an answer setting up his mortgage, but asking no affirmative relief, and none was granted. Mrs. Binkley filed no answer. Decree was rendered in favor of D. & M., the land was sold, and the proceeds exhausted by the prior mortgage. Binkley having died, Mrs. B. sought to redeem the mortgage to Face and recover dower in' the premises. The court held that these proceedings did not bar her right to recover; that to have that effect, Peter Face should have filed a cross petition, asking for a foreclosure of his mortgage, making her a party thereto and have taken a decree thereon ; and not having done so, and the land being sold under a decree for the plaintiffs whose claim did not preclude her dower, she was entitled to redeem and have dower assigned. “ It cannot be maintained that she is barred by.a proceeding in which her rights have not been alluded to, and which did not purport to affect them.” Much less can it be maintained that she is barred by a proceeding to which she. was not a party at all, instituted .to enforce a lien inferior to her rights, and in -which the holders of the only lien superior thereto, made no appearance, filed no pleading, and in which the court did not attempt to affect her interest.

The land sold for $6,500; the amoiint paid the legatees was $899.15; the court below decreed to the defendant in error dower in fifty-six sixty-fifths of the land. As nine sixty-fifths of the purchase-money was paid to the legatees, the effect of the decree is to sustain the title of plaintiff in error, to nine sixty-fifths of the land free from the dower. This is an unusual way of working out the rights of the parties, but we are not disposed to disturb it here for two reasons. First, because while complaint js made of this, it is not claimed, that if defendant in error is entitled to dower at all, she gets thereby more than she would if required to' redeem, and then have dower assigned in the whole. The land was appraised at $9,500. She was not bound to accept the purchase price, at execution sale, as the true value of the land, and it is quite evident that if-any one is prejudiced by the decree, it is not the plaintiff in error. Second. It is by no means certain that she was not entitled to dower in the whole land. In the action under which the land was sold, the legatees filed no answer and were in default, as were all of the other parties defendant. There was no claim asserted against the interest of the wife. After paying the plaintiff’s claim, the balance of the money was brought into court. Whose money was it ? No one bad set up any claim to -it, and in tbe absence of such claim by any of the defendants, it would seem to belong to the defendant James W. Dingman, and it was with this money. that the legacies were paid. It is true they were so paid by order of the court, in an action in which the purchaser was one of the plaintiffs, and which could only affect the husband’s interest; and out of proceeds arising from tbe sale of the husband’s interest alone. If the legatees had not been made parties, and the surplus, of the proceeds was used to pay their claim, it would clearly be held to be paid by moneys of the-husband, wbieli would extinguish tbe lien. We are not willing to say that making tbe legatees parties where they wholly fail-to assert any claim or seek any relief against the interest of the wife changes the rule.

Judgment affirmed.


source: Caselaw Access Project

author: Upson, J.

license: Public Domain

text:
    Todhunter v. Stewart.
    1. The next of kin of an intestate are entitled to a reasonable time within which to apply for letters of administration.
    2. An application made within eighteen days after the death of the intestate, by next of kin, residing in another county, is made within a reasonable time.
    3. When, without allowing such reasonable time, the probate court appointed a stranger as administrator, the appointment is illegal, and, on application of the next of kin, the letters of administration should be revoked.
    Motion for leave to file a petition in error to the district court of Butler county.
    Jennette Stewart, a resident of Butler county, Ohio, died intestate, on the first day of January, 1883, leaving three sons, Hugh Stewart, Andrew Stewart, and Alexander Stewart, and also four grandchildren, to wit, Kate Skillman, Isabel Barnett, Jennie Heffner, and John Blair, children of a deceased daughter, surviving her, all of whom were of full age, and all residents of Butler county except Andrew Stewart and Alexander Stewart who resided in the county of Hamilton. Mrs. Stewart left personal property to the amount of $3,000. On January 5,1883, William II. Todhunter filed in the probate court of Butler county a request for his appointment as administrator of the estate of Jennette Stewart, signed by Hugh Stewart, Kate Skillman, Isabel Barnett, and Jennie Heffner, and also his own application, in the usual form, for such appointment, to which John Blair also afterward filed his written consent. The probate court then issued to Todhunter letters of administration in accordance with his application, and he gave the bond required by law.
    Andrew Stewart and Alexander Stewart had no knowledge that any application for the appointment of an administrator on their mother’s estate had been made, or was intended, until after Todhunter’s appointment. On January 18, 1883, Alexander Stewart filed in the probate court of Butler county his motion to set aside the appointment of Todhunter and an application for his own appointment as administrator, and presented a request for his appointment as such administrator signed by his brothers Andrew and Hugh.
    The motion, and application, were overruled by the probate court, and judgment was rendered against Alexander Stowart for costs, which proceedings and judgment were, on error, affirmed by, the court of common pleas. The district court reversed the judgment of the court of common pleas, and the judgment of the probate court, and Todhunter now usks leave to file a petition in error to reverse the judgment of the district court. '

      W. J. Gilmore, for the motion,
    urged that the appointment of an administrator is limited by the jurisdiction of the probate court which is restricted to the county,.Rev. Stat. §§ 5994, 6005. All the next of kin had renounced administration except Alexander and Andrew Stewart, who were non-residents and not entitled to notice. How could the court then have refused to appoint Todhunter? and having appointed him it could not remove him, for it had no power to do so. The powers of the probate court are only such as are expressly granted or necessarily implied, and no power to remove in such case as this is either expressly or impliedly given. Rev. Stat. § 6017.

      L. D. Doty, also for the motion.

      T. 8. Crawford and James li. MilliJdn, contra,
    relied on section 6005 Revised Statutes, and claimed that under that section the defendant in error had a reasonable time within which to come in and make application for letters of administration.
   Upson, J.

The statute provides that “administration of the estate of an intestate shall be granted to some one or more of the persons hereinafter mentioned; and they shall ho respectively entitled thereto in the following order, to wit:

“ First. His widow, or next of kin, or both, as the court may think fit, and if they do not voluntarily either take or renounce the administration, they shall, if resident within the county, be cited by the court, or notified by a party in interest for that purpose.
“ Second. If the persons so entitled to administration are incompetent or evidently unsuitable for the discharge of the trust, or if they neglect, without any sufficient cause, to take administration of his estate, the court shall commit it to one or more of the principal creditors, if there be any competent and willing to undertake the trust.
“ Third. If there be no such creditor, and the court is satisfied that the estate exceeds the value of one hundred dollars, the court shall commit administration to such other person as it shall think fit.”

It is the policy of this statute to intrust the administration to those who are most interested in the estate, if competent, suitable, and willing to undertake the trust. It is insisted, however, that the probate court has no jurisdiction to appoint, as administrator, any person who is not a resident of the county, and that this is implied by the provision of the statute requiring citation, or notice, only when, the next of kin are “resident within the county.” This is not the proper construction of the statute. It gives to the persons mentioned, in the order prescribed, the absolute right to letters of administration, subject only to the conditions that they are competent, suitable for the discharge of the trust, and do not neglect, without sufficient cause, to take administration. The construction contended for is not authorized by the language, or policy of the law, or by the practice of the courts.

All of the next of kin residing in Bntler county renounced the administration in favor of Todhunter, but this gave him no right to the appointment in preference to Alexander Stewart and Andrew Stewart, and the latter having also renounced the administration, we need only now determine whether the right, thereto of Alexander Stewart has in any manner been waived or lost.

?_t is admitted that he is a suitable and competent person. He has not renounced the administration, and the only question to be decided is whether, without sufficient cause, he lias neglected to take it.

We hold that in order to protect his right to letters of administration, it was not necessary for him to apply therefor, within five days after his mother’s death. No time being prescribed by law within which the person entitled to administration must apply, the application may be made within a reasonable time, depending upon the circumstances of each case. In this case Alexander Stewart resided in Hamilton county, and filed his application within eighteen days after the death of the intestate, which we think was within a reasonable time.

The appointment of Todhunter having been improperly made, should have been set aside, and the letters of administration issued to him should have been revoked. That the probate court has power to revoke letters of administration granted to another person than the next of kin, in violation of the legal rights of such next of kin, is .well settled. Schouler on Exec, and Admin. § 153, and cases there cited.

Similar statutory provisions have in numerous cases received the same construction which, in this case, we have given to our own statute : Cobb v. Newcomb, 19 Pick. 336 ; Miller v. Washington, 3 Hagg. Eccles. 277; 3 Redf. on Wills, 87; McClellan's Appeal, 16 Penn. St. 110 ; Schouler on Exec, and Admin, ch. 3, § 90.

We are of opinion that there was no error in the judgment of the district court, and that leave to file a petition' in error should be refused.

Motion ovemded.


author: McIlvaine, J.

text:
    Barber v. Hite.
    A wife demanded and received from her husband one-third of the purchase price of a tract of land as and for her separate property, in consideration of her relinquishing to the purchaser her inchoate right of dower in the land sold, and the remaining two-thirds of the price passed into the personal estate of her husband of which he died possessed, intestate. Held: That the widow is not estopped from claiming her (b'stributive share of any part of the personal estate of her deceased husband by reason of the fact that such estate was augmented b3r the conversion of such realty into personalty.
    Motion for leave to file a petition in error to the district court of Wyandot county.
    On April 1,1880, L. C. Barber, husband of Sarah R. Barber, being the owner of a certain track of land situate in Wyandot county was bound to convey the same to one Harriet J. Wilson, free from the inchoate right of dower of his wife Sarah. His wife refused to relinquish her right to the purchaser unless one-third of the purchase money should be transferred to her as her sole and separate property. To this demand of the wife the husband assented, whereupon the wife joined her husband in the deed to the purchaser, releasing her right of dower in the premises, and the husband caused the sum of $1,733.33, one-third of the purchase money, to be paid and secured tobe paid to the plaintiff as her separate estate; and the other two-thirds of the purchase money was paid and secured to be paid to L. O. Barber, the husband.
    Afterward, on August 13, 1880, L. C. Barber died intestate, and upon settlement of his estate there was found in the hands of the administrator subject to distribution the sum of $2,370.43, which the administrator was ordered by the probate court to pay over to the proper distributees. Thereupon a controversy arose, between the heirs and the widow as to the right of the parties under the order of distribution, the latter claiming one-half of the first $400 and one-third of the balance, the former denying the widow’s right to any share in the distribution, inasmuch as the amount to be distributed was less than the sum received by the intestate from the sale of the land above mentioned, from the purchase money of which the widow had secured at the time the full one-third part.
    To settle this controversy, Julia Hite, one of the heirs and distributees, under the statute in such case made and provided, commenced the original action in the court of common pleas against the administrator of the estate, the widow, and the other distributees, and alleged in her petition' among other things, that the intestate delivered to his wife the sum of $1,133.33, aforesaid, for her sole use and benefit, “to have and to hold the same as her separate estate and property in full satisfaction of all claims on her part against the said L. C. Barber, his heirs and assigns, for or on account of the proceeds of said sale of said premises as aforesaid.
    “ The said plaintiff further saith that no part of said notes or money so given by the said decedent to his said wife, came to the hands of his said administrator as assets of said decedent’s estate; and plaintiff avers and charges that the residue of said notes, representing two-thirds of the said sum of $d,900, came to the said administrator’s hands, and were collected and accounted for as assets of the estate, and that but for the sale of the said premises by the said L. C. Barber, as aforesaid, the personal assets of said estate would have been insufficient to pay the just debts and costs and expenses of administration of said estate.”
    The defendant Sarah R. Barber, by her answer, alleged that her inchoate right of dower in the premises sold by her husband to Mrs. Wilson, was the sole consideration for the third of the purchase money so received by her. “ That she neither had, or pretended to have, anything to sell except her said right of dower; she had no interest in the remaining proceeds of said sale nor did she sell or pretend to sell any such interest, or to sell or relinquish any other marital right excepther said right of dower.”
    The district court, to which the cause was taken by appeal found that “ as a consideration for signing the conveyance and releasing her right of dower, the said Sarah R. Barker demanded and received notes and money to the amount of seventeen ■hundred and thirty-three dollars and thirty-three cents out of the purchase price of the land sold. That there was no agreement as to the right of the said Sarah R. Barber, as wife or widow, in any other portion of her husband’s estate.”
    Upon- this state of facts, the district court found that the plaintiff in error was estopped from claiming any portion of the money in the hands of the administrator for distribution, and decreed that the same should be distributed among the children and heirs-at-law of the intestate.
    This proceeding is prosecuted to reverse the judgment of the district court.

      j. M. D. Sears, for the motion.

      G. li. Mott, contra.
   McIlvaine, J.

The judgment of the district court was clearly wrong.

The funds in the administrator’s hands for distribution arose from the personal estate of the intestate owned by him at the date of his death on August 13,1880. Section 6194 of Revised Statutes, then in force, provides, “ where the intestate shall not have .left any legitimate child, heir of 1ns body, the widow shall be entitled to all the personal property, as next of kin, which may be subject to distribution upon settlement of his estate; and if the intestate shall have left such child, the widow shall be entitled, upon distribution, to one-half of any'sum not exceeding four hundred dollars, and to one-third of the residue of the personal estate subject to distribution.” This case falls within the last clause of this section.

It matters not when or from what source the personal estate of which the intestate may die possessed, was acquired; the operation of the statute is the same where there is no bar. The facts in this case do not constitute a bar. The alleged fact, that the plaintiff in error received the one-third of the purchase price of the land sold “in full satisfaction of all claims on her"part against her husband or his heirs for or on account of the proceeds of said sale of said premises,” was-not proved ; but on the other hand it was found by the court, that she did not sell or reiinquisli any other marital right except her dower in' the premises sold. That she was paid liberally for her inchoate right of dower in the premises is undoubtedly true ; but she was paid only the value thereof as agreed upon between her husband and herself ; and surely she does not thereby stand in a worse j>osition toward the balance of her husband’s estate, than she would in case her husband had transferred to her a like separate estate by way of gift. Such gift would not bar the widow of the giver from an interest in the distribution of his personal estate subject to distribution.

The present case, however, is more analogous to one whore the husband conveys his real estate subject to the inchoate dower in his wife, and after the purchase price, to wit, the value of the land less the value of such inchoate right, falls into his personal estate, dies, whereby the inchoate right of dower becomes dower consummate in his widow. Surely no one would contend that the right of the widow to her statutory share in the distribution of the personal estate of her husband, would be at all affected by the fact that such personal estate was augmented by the conversion of such real estate into personalty. Motion granted.

Jiodgment of district court reversed, and judgment entered in famor of plaintiff in error.


author: Doyle, J.

text:
    The State v. Commissioners.
    1. Where the county commissioners proceed, under tlio provisions of title VI, chapter I, pt. 1st, Revised Statutes, to advertise for sealed proposals for the furnishing of labor and materials for the erection of a courthouse, and the bids are such that the contract must be let for the entire job, it is their duty to award such contract to the person or persons offering to perform the same at the lowest price, and give sufficient bond to the acceptance of the commissioners for the faithful performance thereof.
    3. There is no such conflict between sections 794 and 799 Revised Statutes as requires the rejection of either. Section 794 provides for letting contracts, in certain cases and under certain conditions, to separate bidders representing different trades, in respect to which, the provisions of that section and not section 799 apply. In all other cases the provisions of the latter section govern.
    3. Where a contract is to be let for the entire job, because the aggregate of the separate bids exceeds the estimated cost of- the improvement, the ■ . case is one not provided for by section 794 ; and in determining who is entitled to the contract, the provisions of section 799 (which is identical with section 10, of the act of April 27, 1869, 66 Ohio L. 52), as construed by Boren v. Commissioners, 21 Ohio St. 311. are applicable and govern.
    Mandamus.
    The commissioners of Marion county, being authorized and. having determined to erect a courthouse in that county, procured the necessary pians, drawings and specifications to be made and filed therefor; the estimated cost thereof to be $100,000. Thereupon the commissioners advertised for bids or proposals for doing the work, requiring each proposal to be accompanied by a bond, in the sum of $1,000, conditioned that the bidder would enter into the contract, if awarded to him, and also give a bond with good and sufficient sureties in the sum of $25,000 that he would well and faithfully perform the contract. •
    By the terms of the notice, proposals were to be received up to one o’clock in the afternoon of March 29, 1883. The relator, by a proposal in due form, with the required bond accompanying the same, proposed to do the work for $91,600. Gr. Leffler & Go. proposed tt> do the work for $99,980, and William Saint for $92,322.24. Bids were also received from different parties for doing the separate parts of the work represented by different trades, and also several other bids for doing the entire work. All of the separate bids when aggregated, and all the bids for the entire work except those mentioned, exceeded the estimate’ of $1.00,000. On the day named in the notice the bids were opened and the commissioners adjourned until the next day without awarding the contract. On the next day, March 30, they awarded the contract to Leffler & Go. for $99,980, but did not announce their action until the Monday following. The relator, upon learning that the contract was thus awarded while lie was the lowest bidder, tendered to the commissioners a contract duly signed by him, and also a bond with sufficient sureties in the sum of $25,000, conditioned that he-would well and faithfully perform the contract, and demanded the same. The commissioners having refused to give it to him, he filed his petition in this court setting up the above recited facts and praying that defendants bo compelled, by mandamus, to awa^-d him such contract.
    The answer admits all of the facts thus recited, except the sufficiency of the sureties on the bond tendered by relator, respecting which it says defendants have no knowledge, and hence deny its sufficiency. The proof however shows that the bond is sufficient, both in form and as to the responsibility of the sureties.
    The answer alleges that the relator was not the lowest and best bidder. That the commissioners carefully and honestly considered all the bids, together with the skill, responsibility, promptness,'honesty and experience of each bidder. That the cost of the building, if an honest job was done, would be $100,000; that relator was intoxicated when the bids were being considered, and they were informed and believed, ho was in the habit of getting intoxicated; that they were informed and believed he was without experience, unskilled and incompetent to construct said building or any part thereof; that he was not pecuniarily responsible and not prepared financially to carry on and complete the work ; that he attempted to intimidate the said board, and to purclnfso the influence of the prosecuting attorney who was advising with said board, and that, acting upon the information aforesaid, and in good faith, they awarded said contract to Lefller & Co., believing them, while not the lowest bidders, to be the loxoest and best bidders.
    These allegations of the answer are denied by the reply filed by the relator. This court heard the testimony of the witnesses offered by both sides, and the arguments of counsel.

      James M. Trigm and Marriott cG Hughes, for the plaintiff:
    The commissioners, having determined to award the contract, were bound to award it to the bidder offering to do the work and furnish the materials at the lowest price, and giving the requisite bond. The powers and duties of the board are prescribed by sections 794-799. of the Revised Statutes. Those sections divided bidders into two classes, viz: 1. Separate bidders. 2. Bidders for the whole job. Section 794 applies only to the first class. Section 799 applies only to the second class. Section 794 says: “ In all cases the contracts for the doing of the work belonging to each separate trade shall be awarded to the lowest and best separate bidder therefor . . . unless the same is let as a whole.” Section 799 says: “ But such contract shall be awarded to and made with the person or persons who offer to perform the labor and furnish the materials at the lowest price.” State ex rel. Clough v. Commissioners of Shelby County, 36 Ohio St. 326, does not apply to the case at bar. Section 794 is. confined cxcusively to separate bidders, and a bidder, for the whole job nowhere comes within the terms of this section. lie is expressly excepted from its provisions. Ilis bid is governed by section 799, which “requires the contract to bo awarded to the person offering to perforin the labor and furnish the materials at the lowest price.”
    The statute has not undergone such a change since the act of April 27, 1869, (66 Ohio L. u2) as to give to the commissioners greater discretion in the letting of the contract in the ease at bar, than they had under said act, and consequently we claim that the cases of Boren v. Commissioners, and Farman v. Same, 21 Ohio St. 311, are applicable and dispose of this case.
    While there is a difference between sections 794 and 799 of the Revised Statutes, yet we think there is not a want of harmony between them when the two are carefully considered.

      W. B. Davis and C. II. Norris, for defendant:
    The statutes relating- to the letting of contracts for public buildings “ were enacted for the benefit of the public, and not for individual bidders, and should be executed with sole reference to the public interest” (State v. Commissioners, 36 Ohio St. 331), and cannot reasonably be construed to limit the commissioners to the exercise of less discretion then a prudent business man would exercise in his own affairs.
    From the very nature of the case, the exorcise of discretion, by the commissioners is necessarily implied in the duty to examine and award contracts; and the requirements of section 779 of the Revised Statutes to award the contract to the one offering to perform the labor and furnish materials at the lowest price is ex necessitate the same as the requirements of the act of 1831, to awai’d to the lowest bidder “if in the opinion of the commissioners he was a proper jierson to undertake such work or of section 791 Rev. Stats, to award to the lowest and best bidder. Boren v. Commissioners, 21 Ohio St. 311, qualified and explained ; 36 Ohio St. 330.
    Rut this court has already in State ex rel. v. Commissioners, 36 Ohio St. 326, construed sections 791 and 799 Rev. Stats, together as authorizing the commissioners to awai’d to the low- . est and best bidder, and the question as to the discretionary power of the commissioners can hardly be any longer regarded as an open question.
   Doyle, J.

We are satisfied from the evidence, after carefully considering it, that the commissioners acted in good faith, under the mistaken advice and belief that ample discretion was vested in them to reject the bid of the relator, upon the information which they had. Wo are equally satisfied, that, whether any discretion is vested in them or not, they acted upon insufficient information, and to some extent incorrect information, and that they offered the relator no opportunity to p'utthem in possession of the real facts, before deciding against awarding him the contract. Wo must assume that if the commissioners, when the charges were made against Mitchell, had given him a hearing, he would have satisfied them, as he has us, that there was, in fact, no reason why this contract should not be awarded to him.

We might grant a peremptory writ in this case without saying more, were it not for the claim urged, with great earnestness, that the commissioners are vested with complete discretion, in the matter of determining who is entitled to such a contract, and that such discretion, when exorcised in good faith, will not bo reviewed by the courts, oven though the information upon which they acted was false, or that they were themselves misled by it, or that it was wholly insufficient to justify their action, if they believed otherwise.

In the Darke county cases, 21 Ohio St. 311, this court, construing the act of April 27, 1869, held that:

“Where the commissioners proceed, in accordance with said act, to advertise for sealed proposals, to be filed within the time named, for the furnishing of specified labor and materials toward the erection of a court house, it is their duty to award the contract for such labor and materials to the person or persons who shall so offer the same at the lowest price, and give good and sufficient bond, to the acceptance of the commissioners, for the faithful performance of the contract; provided such price is not in excess of the preliminary.estimates required by the act.” Section 10 of the act of 1866, which is identical with section 799 R. S. requires the contract to be “ awarded to and made with the person or persons who offer to perform the labor and furnish the materials at the lowest price, and give good and sufficient bond to the acceptance of the commissioners for the faithful performance of their contract,” &c. Construing this provision, Day, J., in the cases above referred to, says, “ The statute under which the parties were acting leaves but little discretionary power to be exercised by the commissioners, but they are vested with this power as to the sufficiency of the bond required of the bidder by the act, to entitle him to have the contract awarded to and made with him. Undoubtedly this discretion must be exercised in a reasonable and proper manner.” See also Beaver v. Trustees of Blind Asylum, 19 Ohio St. 97.

These adjudications are conclusive of the question under consideration, unless they have been overruled by subsequent decisions, or the law changed since they-were made, by legislative enactment.

The contention is, that after the act of 1869, and the decision-in the Darke county cases, the legislature vested in the commissioners the complete discretion contended for by the defendants herein. That the act of May 5, 1877 (74 Ohio L. 168) required the commissioners to let 'the contract to the lowest and lest bidder, and in terms repealed all laws and parts of laws then in force inconsistent with its provisions. That to determine who is the best bidder requires the exercise of a discretion by the commissioners, limited only by its exercise in good faith, in determining what is for the best interest of the public. That this law being in conflict with sec. 10 of the act of 1869 must, have the effect of repealing it. Being the latest expression of legislative will, it must govern.

The case of State v. Commissioners of Shelby Co., 36 Ohio St. 326, is relied upon to sustain this view.

Both of these laws were carried into the Revised Statutes, with some changes made in the act of 1877, but without change in the act of 1869. The act pf 1877, as amended, is now sec. 794 and sec. 10 of the act of 1869, is now sec. 799, R. S. Is. there any irreconcilable conflict between the two ? It is the duty of the court to so construe them as to give each full force and effect, if it can be done without violence to established rules of construction or the manifest legislative intent.

By the act of March 3, 1831 (2 S. & C. 1228), the commissioners were authorized to receive sealed proposals, or to sell the work at public auction to the lowest bidder; and the person making the best proposal or the lowest bid, was entitled to the contract, “ if in the opinion of the commissioners he is a proper person to undertake such work.” This act, with a number of others, was repealed by the act of April 27,1869, already mentioned, and the words, giving the commissioners discretion to determine whether the bidder was a fit person to undertake the work, as also the words “ best proposal ” were omitted.

This latter law, with the construction given in the Darke county cases, was in force when the act of 1877 was passed. It must bo remembered that up to the latter date there was no obligation imposed on the commissioners to advertise for separate bids from the different trades represented in the proposed improvement.

The act is entitled “ an act to regulate the letting of contracts for the doing of public work and the better protection of mechanicsIt provided that whenever any board, &c., is authorized to contract for the erection of any building, &c., and required by law to advertise for proposals therefor, it shall be the duty of such board, &c., “to require saeparte and distinct proposáis to be made for furnishing the materials, or doing the work, or both in their or his discretion, for each separate and distinct trade or kind of mechanical labor, employment or business , necessary to be used in making such public improvement; and in no case where more than one such trade or kind of mechanical labor, employment or business shall be required to furnish the materials for and do any such work, shall any bid for the whole of the job, or any greater portion thereof than is embraced in one kind of trade or mechanical labor, employment or business, be received or considered by any such board, officer or authority, in making the award of the contract or contracts for the same. And in all cases the contracts for doing the work belonging to each separate trade or kind of mechanical labor, employment or business, or the furnishing of the materials for the same, or' both, at the discretion of the said officer, board, or other authority, shall be awarded to the lowest and best, separate bidder therefor, &c.”

In the Revised Statutes, sec. 794, this statute was so changed as to require that no bid for the whole job shall be considered “ unless the, separate bids do not cover all the work and material required, or the bids for the whole, or for two or more kinds of work or material, are lower than the separate bids in the aggregate,” and requiring the contract to be let to the lowest and best separate bidder, “unless the same is let as a whole, or to bidders for more than one kind of work as aforesaid.” The separate bidder meant by this statute is a bidder for a separate part of the work belonging to a distinct trade or division of mechanical labor.

It is apparent that, under this section, read in connection with the other sections regulating the letting of the contract, to require the commissioners to let the contract to the lowest and best separate bidders, the aggregate of such separate bids must not exceed the estimated cost of the improvement; must cover all the work and materials required, and must not exceed in amount any bid which includes the whole of the work. In other words the work shall not be let to different parties, representing different trades, if the aggregate of their bids exceeds the amount of any bid which includes all of the different kinds of work to be done.

In this section 794 alone is found the words “ the lowest and best separate bidder.” Its purpose was to provide a means for bidding upon separate parts of the work, by contractors or tradesmen, without requiring them to undertake the entire job, as well as to prevent combinations to forestall competition. But the'legislature,- in the changes made in the law as enacted in section 794, wisely provided that this privilege to the separate tradesmen should not be at the expense of the public. To entitle them to separate contracts their bids must not exceed that of any bidder who includes the whole, must not exceed the estimate, and taken together must embrace'the whole work.

When the conditions exist which require the commissioners to let the contracts separately, they shall let them to the lowest and best separate bidders. But when those conditions do not exist, as in the case at bar, and the commissioners are required to let the contract for the entire job, to whom shall it be let? The law of 1869 which has been carried into the Revised Statutes without material change, and as construed in the Darke county cases sti-pra, requires the commissioners to let such, contract to the person offering to do the work at the lowest price and giving good and sufficient bond to the acceptance of the commissioners, &c.

We cannot hold that this provision is repealed by section 794. Each of these sections is in full force, and each is limited in its operation to the cases included in it when both are read together. It is no part of our duty to explain why the legis-, lature saw fit to vest in the board a greater discretion when awarding contracts to a number of persons, having no’responsibility for each other, than when awarding the same by a single contract to a person or persons responsible for the entire work.

• These' sections thus construed are reconciled and not in conflict. With this construction there is no conflict between the decisions in the Darke and Shelby county cases. ■ In the latter Case the bids were separate, for the iron work alone. The lowest bidder (to whom the contract was awarded), refused to execute it, and the commissioners readvertised. The relator, who was the only other bidder under the first notice, sought to compel the commissioners to award the contract to him. The court held that they were not bound to do so. What the result would have been, if the commissioners had awarded the contract to the relator in that case, in the first instance, and refused it to the lowest bidder, we need not determine.

We agree with the holding in that case, that in so far as sections 791 and 799 are different, the provisions of the former must govern; because they relate to special cases which form exceptions to the general provisions of the latter.

It is, in our judgment, quite evident that the legislature intended by the changes in the act of 1875, found in section 791, to make it harmonize with the other sections of the chapter enacted at the same time, and that there is no occasion to resort to the rule that the latest expression of the legislative will must govern, for the reason that the sections are made to harmonize by this single expression of the legislative will.

It may be added that whatever discretion is vested in the commissioners under section 791, (which we do not determine) it certainly is not greater than that vested in them under section 799 in respect to the acceptance of the bond. In the language of J udge Day, “ undoubtedly this discretion must be exercised in a reasonable and proper manner.” We have already said that, while the defendants supposed they had a right to reject this bid, under the circumstances, that discretion, even if we found that section 791 governed their action, was not exercised in a reasonable and proper manner.

■Peremptory writ allowed.


text:
    The State v. Squire.
    1. The office of clerk, in cities of the second class, is held by election, and not by appointment, within the meaning of section 1709 of the Revised Statutes.
    2. The term of office of such clerk is two years.

      Quo Warranto.
    The ease is stated in the opinion' of the court.

      I). A. Hollingsworth, Attorney-General, for the plaintiff.
    W. G. Johnson, for defendant.
   Upson, J.

This is a proceeding in quo warranto, instituted by the attorney-gpnoral against Charles B. Squire for the purpose of ousting him from the office of clerk of the city of Defiance, to which office it is claimed that Wyatt T. Hill is legally entitled. It is admitted that Squire was elected to that office by the city council of Defiance, a city of the second class, on April 11, 1882, at the first regular meeting of the council after the second Monday in April of that year; that he duly qualified, by giving the bond required by law, for the term of two years; that he then entered upon the duties of the office, and that he has ever since performed those duties, and acted as such city clerk.

It is also admitted that on April 17,1883, the city council of Defiance, at its first regular meeting after the second Monday of April, 1883, elected a president and president pro tempore, and then, by direction of the mayor, proceeded to the election of a clerk, which resulted in the choice of Wyatt T. Hill by the votes of four members of the council and the mayor, the other members of the council, four in number, being present, but refusing to vote.

Hill thereupon qualified for the term of one year by giving the bond required by law, and now claims the office which is held by Squire.

In his answer to the petition filed by the attorney-general, Squire, as his first defense, denies that Hill has been elected to the office of clerk of the city of Defiance, or has any title thereto ; and as his second defense, states his own election, qualification and performance of the duties of the office, and insists that he was elected for two years, and that his term of office will not expire until after the organization of the council in April, 1881. To this second defence a demurrer has been filed by the attorney-general.

The only question tobe determined in this case is whether in a city of the second class the clerk is chosen for one year, or two years. Section 1709 of the Revised Statutes provides that “ Officers who are elected shall serve two years, ” except certain specified officers, among whom the clerk is not named, and that “all officers who are appointed shall serve one year except as otherwise provided in this title.”

It is claimed by the relator that the clerk is appointed, and not elected. The word appointment, as used in statutes, generally means the designation of a person to hold an office, or trust, by- an individual, or a limited number of individuals, to whom the power of selection has been delegated. The word election is properly applied to the choice of an officer by the votes of those upon whom the law has conferred the right óf electing such officer. In the statutes under consideration the power of appointment is usually given to the mayor, with the advice and consent of the council, but in no instance is the selection of an officer by the council spoken of as an appointment. The choice of an officer by the council is in this statute called an election. Section 1676 of the Revised Statutes, which relates to the organization of the council in cities of the second class, provides for electing the clerk, and there are similar provisions for the election of clerks in cities of the first and third grades of the first class. In the case of State ex rel. v. Green (37 Ohio St. 227), which was a proceeding in quo warranto to test the validity of the election of a clerk of the city of Zanesville, it is stated in the opinion of the conrt that, “the statute contemplates an election, and that each member of the electing body shall have a vote in the choice of any officer, and in case of a tie vote, that the mayor shall give the casting vote.” From an examination of the previous legislation upon the same subject, as well as the different provisions of the Revised Statutes, it seems clear that the word elected is used in the same sense wherever it occurs in the statute ; that the office of clerk is held by election and not by appointment, and that the term of office is two years, as prescribed by section 1709. The only reason suggested fox- giving to the statute a different construction, and limiting the application of the word elected in section 1709 to officers chosen by the electors of the city, is that section 1G7G also provides for the election of a president, and president pro tempore of the council, and apx-paently contemplates the annual election of those officex-s. The obvious answer to this suggestion is that they are not among the officers of cities of the second class enumerated in section 1707, and that the legislature evidently did not regax-d an election as president, or president pro tempore, of the council, as eonfex-ring upon the member of the council thus elected an additional municipal office.

Demtorrer overruled and judgment for defendant.


author: Okey, J.

text:
    Tullis v. The State.
    On the trial of oue charged with crime, a person, jointly indicted with him was called by the state and gave evidence tending to prove the guilt of the defendant on trial, which evidence was in conflict with former statements of the witness : Held, that the defendant may show, by cross-examination of such witness, that he had been offered money and property and immunity from punishment, if he would testify as ho finally testified on behalf of the state; the fact that the offer was made by one having no authority to make it going to the weight and not the competency of the evidence.
    Error to the Court of Common Pleas of Hamilton county.

      JS. P. Dustin and Thomas id Shay, for jilaintiff in error.

      D. A. Hollingsworth, Attorney General, and Rufus B. Smith, for tlxe state.
   Okey, J.

An indictment was found November 2,1880, in tlie court of common pleas of Hamilton county, against Andrew J. Tullís, Ephi-aim Martin, Jacob Nine, and others, in which it was charged, that after the death of Jeremiah C. Tullís, to wit, on September 15, 1880, with intent to defx-a.ud, they forged a certain instrument purporting to be a deed by said Jeremiah C. Tuliis, bearing date December 11,1877, when J. C. Tuliis was living, conveying in fee simple, with covenants of seizin, against incumbrance, and of general warranty, to Jacob Nine, aforesaid, 6,000 acres of land (properly described) in the state of Tennessee, in consideration of one dollar and in exchange for certain real estate

The defendants severed, and on March 25, 1882, the jury returned a verdict of guilty against Andrew J. Tuliis, upon which he was sentenced to the penitentiary. A petition in error has been filed by him in this court, in which he sets forth several alleged errors as ground of reversal; and we find that at least one of the erroi's is well assigned.

Jacob Nine, one of the defendants, was summoned as a witness on behalf of A. J. Tuliis, and was in consultation with him and his attorneys until the jury was impaneled and sworn, and counsel for the defendant Tuliis, as well as the prosecuting attorney, had stated the case to the jury jmeliminary to the introduction of the evidence. Indeed, the preliminary address of Tuliis’ counsel was based on the statements of Nine, who sat at his side until it was completed. That statement was, in substance, that he had conveyed certain lands to J. O. Tuliis and received from him certain bonds and a deed for lands in West Virginia; that the bonds were in fact worthless, and Tuliis had no title to the West Virginia lands ; that the deed in question in this case was executed in consequence of such failure of consideration in the original contract; and that he saw J. C. Tullís sign the deed here in question, and the same was genuine. He had made the same statement to other persons, and it does not appear that he had said anything inconsistent with it until after the case was called for trial. Previous to such preliminary statement to the jury, however, Nine had, unknown to A. J. Tuliis and his counsel, made a communication to the prosecuting attorney, upon the strength of which he placed Nine on the stand as a witness for the state, and Nine testified in direct conflict with the statements which he had made to the counsel of Tuliis, so far as they related to the execution of the deed here in question, and gave evidence tending to show that the defendant Tullis had committed the forgery charged in the indictment. On cross-examination Nine admitted, in substance, that the defendant Martin had come to him, some time before the trial, with a proposition for a settlement of the difficulty, so far as he (Nine) was concerned, and said that he had talked with and could obtain from the administrators of J. C. Tullis, not only compensation for all he (Nine) had lost in the transaction with J. C. Tullis, but also the payment of his expenses, if he would testify as he finally did testify on the trial. The object of the administrators, it is claimed, was to convict A. J. Tullis in this case, and thereby enable them to discredit him as a witness in other cases in which it was expected he would testify as to the validity of deeds for other lands purporting to have been executed by J. C.'Tullis. The prosecuting attorney moved the court to strike out the evidence of Nine as to such conversation with Martin, on the ground that it was incompetent, and the court sustained the motion, and thereupon the defendant Tullis excepted.

We are unanimous in holding that the court erred in excluding from the jury the evidence as to Martin’s declarations. There wa%testimony tending to show that J. C. Tullis had sold to Nine certain bonds and executed to him a deed for West Virginia lands, and that the bonds were worthless and the title to the lands failed, and hence that Nine had a valid claim against him. The theory of the defendant Tullís was that the deed alleged to have been forged was in fact a valid instrument executed by J. C. Tullis in settlement of Nine’s claim. Nine ■admitted in his testimony that he had made declarations fully in accordance with this theory. It was for the jury to say whether his testimony on the trial, or such previous statement, or either, was true. As tending to show that the previous statment, and not the testimony, was true, the defendant Tullis offered such evidence of a proposition for settlement. It is always competent to show any interest, bias or prejudice of a witness, and it is the duty of the jury to consider it in connection with his testimony. Whart. Cr. Ev. §§ 476, 477. llore the question was, not whether an offer had been made by one clothed with authority to bind the state, but whether a proposal had been made by anybody,'and if so what effect it had in controlling the conduct of Nine as a witness.

Judgment reversed.


author: MoIlvaine, J.

text:
    Loudenback v. Foster.
    In an action to set aside a conveyance in fraud of creditors, under section 6344, Eevised Statutes, the court found that pending an action against the vendor, a brother of the purchaser, who was at the time insolvent, which was known to the purchaser, in consideration of the deed, absolute in form, the purchaser agreed to pay a debt secured by mortgage on the land, release a debt due to himself also secured by a mortgage and to convey to the vendor a tract of land of the valu'e of $8,000.00, which in the aggregate was a full consideration, and also agreed to suffer the vendor to remain in possession until ho could sell the land and out of the proceeds reimburse himself, and then pay to the vendor the balance, if any remained ; that the plaintiff, a creditor of the vendor, was thereby hindered and delayed in the collection of his debt, whereupon the court held the conveyance to be constructively fraudulent, set the same aside as to creditors, although it also found that the purchaser had no actual intent to defraud the creditors of the vendor.
    No notice of the pendency or object of the suit had been given, but as the court found that there were no other creditors of the vendor, ordered the sale of the land, and that out of the proceeds the plaintiff should be paid in full.

      Sold: 1. There was no error in the decree finding fraud in the conveyance and setting the same aside.
    2. The court erred in ordering a sale of the land and directing the payment in full of plaintiff’s claim.
    3. After finding the fraud, the court, under the statute, should have caused a copy of its finding to be certified to the court of probate for the settlement of the insolvent's estate.
    Motion for leave to file a petition in error to the District Court of Champaign county.
    On June 21, 1880, John Foster recovered a judgment against Martin Loudenback fpr $311, and costs of suit, in the court of common pleas of Champaign county. Pending the action, on May 31, 1880, Martin conveyed to liis brother, David Loudenback, a tract of land containing eighty acres, situate in said county. Foster, afterward being unable to obtain satisfaction of his judgment against Martin by execution,' commenced the original action herein against David Loudenback et al. to subject the lands so conveyed by Martin'to David to its payment. This action was taken by appeal from the court of common pleas to the district court. On the trial in the district court, the facts and the law were found and stated as follows:
    “ On May 31, 1880, said Martin was the owner in fee of said land which was subject to mortgage in favor of the Union Central Life Insurance Company of Cincinnati, Ohio, for $2,920.64, and to one in favor of David Loudenback, defendant, $2,484.53, and which said sums wore due and payable. The said Martin on that day was insolvent and unable to pay his debts, he their owing said plaintiff’s debt and other debts to said David Loudenback and others — all of which said David then knew. That the value of said real estate described was about $8,000. That on said May 31, an agreement was entered into between said defendants (David and Martin) whereby it was agreed that said Martin should convey to said David the said real estate by deed in fee-simple — that as consideration therefor the said David was to assume and pay the said mortgage to said Insurance Company, then amounting to $2,920.64, and canceLhis own mortgage on the land, amounting to $2,484.53, and in addition to convey to said Martin a tract of land agreed to be and which was of the value of $3,000, total $8,405.17. And it was further agreed that the consideration to be named in said deed should be $7,500, but it was further agreed that after the deed was made said defendant, David, was to sell said land at the best price he could obtain, and if the proceeds of said sale was sufficient to pay him the said sum of $8,405.17, with eight per cent, interest from said Majr 31,1880, that it was to be so applied, and if there was any residue it was to be paid to the said Martin Loudenback. It was also then agreed that Martin was to occupy the said land so conveyed by him to David, and the other tract conveyed by David to him, and after supporting his family, he was to pay such rent to David therefor as he could. Said Martin thereupon conveyed said land described in the petition to David by an absolute deed in fee-simple, and Martin continued to live on said lands until March 1, 1883, having paid nothing as rent except $36. The 72 acres was not conveyed by David to Martin until March, 1883, although he was put in possession thereof soon after May 31, 1880. In the spring of 1883 David sold the farm conveyed to him by Martin at $8,000, its full value, on long payments bearing 6 per cent. When he conveyed the 72 acres to Martin in March 1883, he at the same time took a mortgage from him on the same for $1,600, being in part for other debts due from Martin to him, and in part for the difference between the sum he had paid for the land, viz.: SS105.17, together with 8 per cent, interest thereon, and the sum received by him for the said land, to wit, $8,000, less the discounts of 2 per cent, on the notes given as purchase money therefor. The court further finds that there was no intention on the part of said David to hinder, delay or defraud the creditors of said Martin.
    “Martin was married, the head of a family, and entitled to a homestead, at the time of the conveyance.
    “ On consideration whereof the court find that said arrangement and conveyance was, in law, fraudulent as to the plaintiff and operated as an assignment of his property in trust for all the creditors of said Martin, and it appearing to the court that there ax-e no other creditor's of the said Martin, it is ordered and adjudged, by the court, that the said claim of the plaintiff is a lien upon said real estate, and that unless said David Loudenback pay to the plaintiff the amount of said plaintiff’s judgment against the said Martin Loudenback, amounting to $365.19, referred to and set out in plaintiff's petition, together with the cost of the ease in which said judgment was recovered and also the costs herein taxed to $ , within 10 days from this date, then an order of sale issue to the sheriff of Champaign county, Ohio, commanding him to caxxse.said land in plaintiff’s petition described to be appraised, advertised and sold, that he apply the proceeds of such sale, or so much thereof as may be necessary to the payment of sueh judgment and costs, and that he bring the residue thereof into court to abide its further order as to distribution,” &c.
    It is to reverse the above order and decree that .this proceeding is now prosecuted by David Loudenbaek, the plaintiff in error.

      Franlc Chance, for the motion.

      L. Geiger, contra.
   MoIlvaine, J.

On the foregoing finding of facts, the district court was right in its holding that the land conveyed •by Martin to David Loudenbaek'was subject to the payment of the grantor’s indebtedness. Although no actual fraud was intended by David, and a full consideration was paid by him for the land, nevertheless he, knowing that Martin was insolvent, assumed to pay the claim of the insurance company, which, notwithstanding its mortgage security, was thereby preferred; and although the conveyance was in form absolute, nevertheless a secret trust was created in favor of Martin without any provision for his other creditors. The conveyance was, in fact, in trust to sell and apply the proceeds to the payment of the insurance company’s claim, the claim of the vendee secured by mortgage, and the purchase price of the laud sold by, David to Martin, the balance to be paid to Martin, who, iu the meantime, was to continue in possession of the land. All these dealings between David and Martin were had during the time Poster, a creditor of Martin, was seeking by due process of law to enforce his claim, and resulted in preventing him from obtaining satisfaction of his judgment by ordinary execution. A hindrance and delay of the creditor, caused by the trust assumed by David, constitute a constructive fraud and bring the case within section 6311 of Revised Statutes in relation to “ insolvent debtors.” Jamison v. McNally, 21 Ohio St. 295.

But having decreed the deed void, the district court erred in proceeding to order the sale of the land and directing the payment of Foster’s judgment from the proceeds, &c. There was no notice given of the pendency and object of the suit, as provided in section 6344. Hence, it was the duty of the court, under said section, after declaring the deed to be void, because in fraud of creditors, to cause a copy of its judgment to be certified to the probate court of the county, to the end that a trustee might be appointed to administer the insolvent’s estate. The only authority, under the statutes, for the court declaring a conveyance void as against creditors to proceed to administer the trust, is where such notice has been given. True, the court below found there were no other creditors. That finding may have been true, but it did not conclude anybody. Notice, before the estate can b5 settled, must be given to creditors either in the manner provided in this section, or by the trustee appointed by the probate court. Again, if we could assume that all the creditors of Martin Loudenback were before the district court, the order was not justified, for it appears that David Loudenback wrasthe principal creditor of Martin, whose claims alone were equal to the probable value of the property, so that it was improper to order the payment of any claim of creditors in full, until a sale of the property and proof of claims were made. An account must be taken, and the proportion payable to each creditor ascertained, before payment in full can be ordered. Motion granted, and the judgment of the district court must be modified, in accordance with the views above expressed.

Cause remanded.


text:
    State ex rel. v. Cappeller.
    1. The.state is not liable for any part of the fees or expenses of the county treasurer or county auditor, or their assistants, except where such liability is created by statute. The state is not bound by the terms of a general statute unless it be so expressly enacted.
    2. No such liability was imposed upon the state by the provisions of the acts of March 20, 1866, B. & S. 780 ; May 6, 1889, 66 Ohio L. 122 ; or section 88 of the act of April 5, 1859, S. & O. 1454 (R. S. §§ 2858, 1071, 1097).

      8. Section 1 of the act of April 14, 1880, (77 Ohio L. 205) is not in conflict with either section 26 or 28, article 3 of the constitution.
    Mandamus.
    The relator, John P. Ogelvee, state auditor, in his petition, represents that prior to October 28, 1881, he as auditor of the state, acting under the laws thereof, examined the certificates and abstract of the semi-annual settlement between the auditor and treasurer of Hamilton county, made on September 23, 1881, which certificates and abstract were returned to said auditor of state October 3, 1881.
    That upon such examination the auditor of state ascertained the exact sum of money payable by the county treasurer to the state treasurer, to be $291,658.63, and that the amount of Hamilton county’s proportion of the state common-school funds, and school, ministerial and other trust funds, due and payable to the county, to be $73,183.60.
    That the auditor of Hamilton county in said settlement sheets, by erroneously deducting from the amount due the sinking fund of the state the sum of $2,958.45, and from the general revenue fund the sum of $4,671.27, and from the state common-school fund the sum of $3,904.88, erroneously reported, in his settlement sheets, the amount payable by the county treasurer to the state treasurer to be $280,124.03. Upon the receipt of such settlement sheets, the relator requested the county auditor to correct said errors, which he refused to do, and continues to refuse so to do, by means of which there has been wrongfully withheld from the state treasury the sum of $11,534.60, bv the county treasurer, and credited to the county fund of said Hamilton county.
    That by section 1043 R. S. as amended April 19, 1881 (78 Ohio L. 226), the county auditor of Hamilton comity, after each semi-annual settlement with the treasurer of the county, is in duty bound to correct any error which may have occurred at any previous settlement and has been in duty bound at each settlement since that of September 1881, to correct the errors aforesaid. That on February 5, 1883, the relator prepared and transmitted to the county auditor, instructions in regard to this error, directing him, atthe forthcoming February settlement, 1883, to correct the same.
    That on March 27, 1883, the county auditor sent to the auditor of state, wliat purports-to be duplicates of-the-several certificates and abstracts required to be made in the February settlement with the county treasurer, bearing date March 23, ■1883, which show that said county auditor, has failed and refused to correct said errors, and to obey the instructions issued by the relator February 5.
    "Wherefore the relator prays for a writ of mandamus, to compel the defendant, after first correcting the errors aforesaid, to apportion the taxes in the hands of the county treasurer-, and to re-certify the balance due the state, etc.
    The answer, admitting that the certificates and abstract of the-settlement of 1871 show the deduction of $11,534.60 in the aggregate, as charged in the petition, denies that such deductions were illegal or unauthorized. It alleges that said sum was for money due and owing to the county by the state, by reason of errors in the apportionment of taxes at previous- settlements, and which, upon a presentation of the facts, and the demand of the county that the same should be corrected at the settlement of August, 1881, the defendant examined and corrected. That he found that the state’s proportion of said errors was the. said sum of $11,534.60 and that to correct said error in his said settlement with- the treasurer of. August, 1881, he deducted from the funds of the state, and transferred to the funds of the county, the sum aforesaid. That the errors were of the following general character, to wit: From 1869, to 1876, there were paid out of the funds of the county,-at various settlements,large sums as counsel fees in suits against the auditor and treasurer for performing their duty in respect to the collection of taxes charged on the duplicate, and in respect to the collection of the public revenue, of which the state should bear its proportion.
    From April, 1870, to September, 1880, large amounts were paid by the county to local collectors, for collécting delinquent personal taxes, said collectors being employed by the various treasurers under authority from the county commissioners. . •

      From 1861 to 1879, there were paid out of the county funds sums of money to the county auditors, and other persons employed by them, as additional compensation for hunting up and causing to be assessed and placed on the tax duplicate omitted property, being a percentage of the taxes thus collected. That the state was interested in and entitled to a share of the taxes collected by said local collectors and upon said omitted property, but has never paid its pro rata share of such counsel fees, local collectors’ compensation, or omission fees, and that its just share thereof is the said sum of $11,534.60.
    That he was therefore justified in making the settlement of 1881, and, in the various semi-annual settlements since, of refusing to make the corrections therein claimed by the relator.

      £>. A. Hollingsworth, Attorney-General, for the plaintiff.

      Warner M. Bateman and IF. M. Amjot, for defendant.
   Doyle, J.

The matter in controversy here is the same that was before us in the State v. Staley, 38 Ohio St. 259. The fact that this money was still in the county treasury, unappropriated, was found in that case, and there is nothing in the present case to show that that is not still true.

It appears from the admitted facts in the present case, that in the settlement of August, 1881 (in fact made September 23, 1881), the auditor of Hamilton county found that, prior to that time certain expenses had been incurred by Hamilton county, in the collection of taxes, and in suits involving the validity of taxes, which had been wholly paid by the county ; • and, assuming that the state should pay its proportion of such expenses, deducted from the amount which would otherwise be due the state, and which the certificates and abstract of settlement would show to be the amount which should be paid by the county treasurer to the state treasurer, the sum of $11,534.60.

This amount was arrived at in this way : First. In 1861, the county paid to its auditor, as extra compensation, for placing upon the county duplicate property which had been omitted therefrom the sum of $620.00, and in 1873, extra compensation was paid to the county auditor for like services, in the sum of $6,745.84, making in all $7,365.84. Of this amount it is claimed the pro rata share of the state was $1,156.37. Second. In 1878 and 1879 the county commissioners employed persons to hunt up property omitted from the tax duplicate, which ought to be taxed, and to furnish the evidence to the auditor upon which he should charge such property upon the tax duplicates. These persons were paid for such services the sum of $3,904.93, and the state’s pro rata share thereof it is claimed was $613.03. Third. Between April 1865, and July 1879, the county paid as attorneys’ fees and other expenses, in actions against the treasurer and auditor for performing or attempting to perform their duties in the collection of the public revenue, the sum of $11,034.10; and also in the prosecution by the treasurer of the proceeding to enforce the eollection of taxes, authorized by section 83, of the act of April 5, 1869, S. & C. 1454, the sum of $1,996.49, amounting in all to $13,030.59, of which the state, it is claimed, should pay its proportion, to wit, $2,045.78. Fourth. Between April, 1870, and September, 1880, there was paid by the county to local collectors, for the collection of delinquent personal taxes, the sum of $49,111.73, and the claim is that of this amount the state should pay its share, to wit, $7,710.52.

The sum of these four amounts, thus charged to the state in the-settlement of 1881, is the amount in controversy now.

The matter specially involved herein is the true construct tion and effect of the several statutes under which the above expenditures are claimed to have been made. It is conceded that if the state can be charged with any part of them, it must 1 be by virtue of some statute, either expressly or by necessary implication, authorizing such charge.

It is quite clear to us that the claim.of the county under the first and fourth enumerations above, and the last item of the third enumeration, must be disallowed. The $620 paid to the auditor in 1861, the defendant concedes, was without authority of law, so far as the state is concerned, and withdraws that item. The $6,745.84 were expended under the authority of the act of May 6, 1869 (66 Ohio L. 122) entitled “ An act supplementary to the act prescribing the fees of county auditors, passed May 1,1862, as amended April 12,1865, as amended April 17,1867.” It provides for additional compensation to be paid out of the county treasury, for placing upon the duplicate all tax omissions, &c., a sum equal to five per cent, upon the total amount of such tax omissions paid into the county treasury.

The additional compensation provided for by this act, was payable, precisely as the general compensation provided by the act (to which it is supplementary) of April 17,1867, to wit: out of the county treasury upon the order of the county commissioners.

The law authorizing the employment of local collectors to collect delinquent personal taxes, under which the expenditures in the fourth enumeration were made, was passed March 20,1866 (63 Ohio L. 43; S. & S. 780).

Section one of that act provides as follows:

“ It shall be the duty of the several county commissioners in this state, semi-annually, at their first meeting after the return of the delinquent list of personal property, to cause the same to be read, and said commissioners may at any time, direct said treasurer to proceed in the manner elsewhere provided in this act, to collect the whole or any portion of the delinquent taxes due their county. The said commissioners, if, upon careful examination, they are satisfied the said delinquent taxes, or any part thereof, can be more certainly and economically collected by the personal application and efforts of local collectors, may empower their county treasurer to employ such collectors, and such number thereof, and for such compensation to be paid out of the county treasury, as will, in the opinion of said commissioners, insure the largest net proceeds from the collection of said delinquent taxes.”

It is claimed by the defendant that the provisions in this section that the compensation shall “ be paid out of the county treasury,” is the designation of the place where the payment is to be made, and not the fund out of which it is to be made..

The answer is that the state is not liable to contribute to the payment of county officers or their assistants, except where such liability is created by statute. The state can, no doubt, through its legislature, subject itself to the provisions of a ■ general law, but it must be by express enactment. The state is not bound by the terms of a general statute unless it be so expressly enacted.” State ex rel. v. Board of Public Works, 36 Ohio St. 409.

The state has the right to impose upon the counties the duty of collecting its portion of the public revenue ; and of all of these statutes, it may be said that it (the state), is not liable for any of the fees, costs, or expenses therein provided for, except where it is made so in terms. It is not a very material matter to the people of the state where this burden is placed, if it is made uniform and applicable alike to all the counties of the state. It would operate unjustly, however, to exempt one county from a burden which is imposed upon others.

The fees of the county treasurers are provided for by general statute. Revised Statutes, § 1117. They consist of a percentage of all moneys collected. In Hamilton county these fees are collected for the sole use of' the county, as public moneys belonging to its treasury. It matters not whether those moneys are collected by the treasurer, by the voluntary payment of the citizen, by distraint, under the provisions of section 38, S. & C. 1454, or the act under consideration. In either case he is entitled to his percentage on the collection, and to subject the state or county to any additional charge must be by authority of some express enactment. The act of March 20, 1866, authorizes the commissioners to empower the treasurer to employ local collectors, but requires that they be paid out of the county treasury. Instead of being an authority to charge . airy part of such expense to the state we think it must be held to expressly impose such liability upon the county.

This is equally true of section 38, S. & C. 1454, under which the item of $1,996.49 arose. There is neither express nor implied authority found therein to deduct from the amount of taxes due the state, any expenses which may be incurred by the treasurer in making the collection through the means furnished by that law.

The balance of the claim made by the county must be allowed.

It is conceded by the relator,- that the first item in the third enumeration above is correct, and that the state is properly chargeable with its share thereof. The expenditure was made under the authority of section 58, S. & 0.1460,'which expressly provides that the state shall be charged with its pro rata share thereof.

When the expenditures named in the second enumeration above were made there was no statute expressly authorizing-them. Whether the county commissioners had authority to bind the county or not by such contracts, it is clear that their action imposed no. liability upon the state. The contracts, however, were made, the services rendered, and paid for.

Thereafter, to wit, April 14, 1880, the legislature passed an act entitled “An act to more fully secure the taxation of real and personal property in the state of Ohio, and for levying-taxes thereon according to. its true- value. ” Section 1 provides- “ that whenever the hoard of county commissioners of any county in this state, containing a city of the first grade, of the first class, shall have employed any person or persons to- ascertain and furnish to the county auditor the facts and evidence-necessary to authorize him to subject to taxation any property Improperly omitted therefrom, no payment for such services shall he made to such person or persons, except in accordance-with the terms of the agreement between the county commissioners and such person or persons, and' such payment shall be made to such person or persons only out of the money actually paid into the county treasury as taxes on such omitted-property, and such compensation shall be apportioned ratably, by the the county auditor, among all the funds entitled to share-in the distribution of such taxes, including- the- state- itself, as well as the counties, townships, cities, villages, school districts and other organizations entitled thereto: Provided, however, that such employment.shall only he authorized as-to-any omissions occurring previous to- the passage of tins act.”

So far as this case and the rights of the state are concerned, this section of the act is to be treated, and indeed it might as well have been so expressed, as legalizing the contracts already referred to, and authorizing the authorities of Hamilton county to deduct a ratable proportion of the expenses incurred from the moneys due the state from that county.

The subject-matter of it is, therefore, of a local and temporary nature, and the act valid within the rule established in State ex rel. v. Judges, 21 Ohio St. 1; State ex rel. v. Davis, 23 Ohio St. 434; State ex rel. v. Covington, 29 Ohio St. 102; State ex rel. v. Hoffman, 35 Ohio St. 435; State v. Board of Education, 38 Ohio St. 6. The objection that its provisions are retroactive is not well made. Art. 2, § 28. The constitutional inhibition does not apply to legislation recognizing or affirming the binding obligation of the state or any of its subordinate agencies, with respect to past transactions. It is designed to prevent retrospective legislation injuriously affecting individuals, and 1 thus protect vested rights from invasion.” Kumler v. Silsbec, 38 Ohio St. 445; 95 U. S. 644; Burgett v. Norris, 25 Ohio St. 308.

Whether the provisions of section 29, art. 2, of the Constitution (Fordyce v. Godman, 20 Ohio St. 1) have been complied with, or whether the act is governed by such provisions, are questions not raised by the record, and not involved herein.

To raise such question, it would be necessary to allege and prove that the act in question did not receive, on its passage, the votes of two-thirds of the members elected to each branch of the general assembly. In the absence of such allegation and proof, the presumption is that the law was properly passed.

Judgment accordingly.


author: Oiosy, JT.

text:
    Walters v. The State.
    Where the evidence tends to prove the commission, by the defendant, of the crime charged in the indictment, at a particular time and place, and the defendant offers evidence tending to show that at such time he was at another place, it is error for the court to charge the jury that testimony tending to show such alibi was not to be considered, unless it established the fact by a preponderance of evidence. The burden of proof was not changed when the defendant undertook to prove an alibi, and if by reason of the evidence in relation to such alibi, the jury should entertain reasonable doubt as to the defendant’s guilt, he should be acquitted, although the jury might not be able to find that the alibi was fully proved.
    Error to tlie Court of Common Pleas of Richland county.

      Pritchard <& Wolfe, for plaintiff in error.

      P. A. Hollingsworth, Attorney General, for the state.
   Oiosy, JT.

1. The indictment charges burglary in breaking and entering a barn in the night season, and stealing therefrom. Verdict guilty and sentence imprisonment in the penitentiary, under Rev. Stats. § 6835. The wheat and meat stolen were in a store-house, and the evidence shows that the door of such store-house was locked, and that in order to get the wheat and meat it was necessary to break open such door. But it was wholly immaterial whether the door of the store-house was open or fastened. There was evidence to prove the breaking and entering the barn, which was the offense charged, and the crime was not disproved by evidence showing that in order to complete tbe theft it was necessary to break and enter the store-house. We understand the proof to be that tbe storehouse was within the barn, and tlie door of tbe store-house could not be reached except by first passing into the barn. In other words, that tbe store-house was merely part of the barn. But if it was not necessary, in order to reach the door of the store-house, to pass into the barn, tbe result would be tbe same, for “ when, on the trial of an indictment there appears to be any variance between the statement in such indictment and the evidence offered in proof thereof, ... in the name or description of any matter or thing therein named or described, such variance shall not be deemed ground for an acquittal of the defendant, unless the court, before which the trial is had, find that such variance is material to the merits of the case or may be- prejudicial to the defendant.” Rev. Stats. § 7216. Under the circumstances appearing by this record, the alleged variance could not, in any view, be material or prejudicial.

2. Evidence was given tending to show that the defendant committed the alleged burglary and larceny on the night of May 5, 1882. The defendant offered evidence tending to prove an alibi. The court charged the jury, among other things, as follows ; “ Under the plea'of not guilty, the defendant, Walters, interposes the claim and defense that at the very time of the alleged commission of the crime he was elsewhere; that is,, that he was at that identical time either in the city of Mansfield or in the village of Ashland, or in a railroad car journeying between the two places; so that, being elsewhere, it was physically impossible for him to be committing crime at the same time at Balliet’s barn. This defense, in law, is called alibi. The. defendant need not make out his defense of alibi by convincing you beyond reasonable doubt. If he established this defense of alibi by a prteponderauee of evidence, that is enough — you must acquit him. A preponderance of evidence for the alibi will be when it outweighs what the state has produced to the contrary, and all the evidence to the contrary. The credibility of the alibi is greatly strengthened if it be set up at the moment of first accusation, and if it be consistently maintained throughout subsequent proceedings ; otherwise its weight is lessened.” To which charge the defendant excepted.

We hold this charge to be erroneous. It is, in effect, that evidence tending to show such alibi is not to be considered in favor of the defendant unless it outweighs all the evidence in opposition to it. We think it was the duty of the judge to have said to the jury that they must consider all tire evidence in the case, including that relating to the alibi, and determine from the whole evidence whether it was shown beyond reasonable doubt that the defendant had committed the crime with Avhich he was charged. The burden of proof was not changed when the defendant undertook to prove an alibi, and if, by reason of the evidence in relation to such alibi, the jury should doubt the defendant’s guilt, he would be entitled to an acquittal, although the jury might not be able to say that the alibi was fully proved. Toler v. State, 16 Ohio St. 583 ; 1 Bishop Or. Pro. §§ 1061-1068; Wharf. Or. Ev. § 333.

Judgment reversed.