author: Johnson, C. J'.

text:
    Newhall v. Langdon.
    A. sold to B. fifty barrels of flour out of a lot of one hundred barrels, all of the same brand and quality, stored by itself ata railroad depot- The carrier’s charges had been paid, and the flour was in charge of the agent of the railroad company, as a warehouseman. Subsequently he sold to O. and D. twenty-five barrels each. He gave to each purchaser, in the order of sales, an order on the company’s agent for the number of barrels purchased. B. sent his team and driver, with his order, to bring away part of his purchase. The driver presented the' order to the agent, who received the same, and pointed out the lot of Hour, from which the driver took 17 barrels, leaving the order and his receipt for the flour removed.
    After this, on the same day, C. and D. each presented his order receipted for and took away the flour they had purchased, leaving the 33 bbls., due on B.’s order in store, which was destroyed by fire the ensuing night.
    It was the usage of the business with reference to which the parties contracted, that flour so received by rail and stored, was not removed by consignee to his possession but remained in the custody of the railroad company until sold, and that the owner sold in lots to such purchasers and gave to each purchaser an order on the company for the amount purchased, and upon presentation of such an order the agent would point out the lot from which the order was to be filled, and the purchaser would remove and receipt for the amount taken. Nothing remained to be done by the seller in contemplation of the parties to complete the sale.

      Held: That by such usage the flour called for by the order-, after its acceptance by the railroad company, was the property of the purchaser, and he was liable to the seller for the price, though part of it was destroyed before being removed to his actual possession. Wood v. McGee, 7 Ohio, 467, distinguished.
    Error to tbe District Court of Hamilton county.
    Tlie plaintiffs, Newhall, Gale & Co., brought an action against defendants, Langdon & Son, to recover for fifty barrels of flour sold and delivered, based upon t e following account:

      Cincinnati, August 28, 1876.
    Sol. Langkdon & Son,
    ' Bought of Newhall, Gale & Co.,
    Flour and Grain Commission Merchants, and Healers in Mill Feed,
    Terms Cash. No. 86 West Front Street.
    50 Bbls. “Our Pet” Flour, 5.15, . . . $257.50
    By Cash, Nov. 1,......87.25
    Bal. . . . $170.25
    The answer admits the purchase of seventeen barrels at the price stated, avers payment therefor $87.25, and denies a sale and delivery of the balance. In the common pleas the case was heard and determined upon the following special finding of facts:
    “ First. On August 28,1876, during the forenoon, the plaintiffs, who were at that date commission merchants, in Cincinnati, Ohio, contracted to sell the defendants fifty barrels of flour of a particular quality and brand, the price fixed by the contract was $5.15 per barrel, on the afternoon of the same day the defendants received from the plaintiffs an order upon the Dayton Short Line Railroad Company, for the delivery to the defendants of fifty barrels of flour, of the brand and character called for by the terms of the contract.
    “ Second. The plaintiffs were the owners, at the time of giving the order, of one hundred barrels of the brand and character called for by the contract; said one hundred barrels of flour had arrived at the depot of said railroad company in Cincinnati, and was stored in the depot in a ¡particular location or compartment; on said 28th day of August, plaintiffs sold twenty-five barrels of said one hundred barrels, to one Smith, and gave him an order upon the Railroad Company therefor; on the 29th of August, they sold to one Sweeney twenty-five barrels, and gave him an order therefor; on the 29th, between four and five o’clock, p. m., the defendants sent their drayman to the depot, with the order for the fifty barrels for the purpose of obtaining some of the flour; he delivered the order to the railroad clerk, took seventeen barrels of the flonr, left the order with the railroad clerk, who noted the delivery of the seventeen barrels on the back of it, and hauled the seventeen barrels to defendants’ store, pursuant to his instructions; later in the afternoon of the 29th, Smith and Sweeney received and hauled 'away the remainder of flour, due them upon their respective orders, thus leaving thirty-three barrels of the one hundred, before referred to. During the next succeeding night, to wit: at 12|- o’clock, a. m., August the 80th, the depot was burned and the thirty-three barrels of flour left of the one hundred as above stated, were totally destroyed. Subsequently the defendants paid plaintiffs for the seventeen barrels which had been hauled, such payment being without prejudice to the rights of either,party touching the remaining thirty-three barrels.
    “Third. Neither the plaintiffs or the railroad company set apart at any time any specific barrels to the defendants, and there was no such setting off, unless the fact that Sweeney and Smith hauled away all of the flour save the thirty-three barrels which were left, and the hauling of the seventeen barrels hauled by defendants amounted to such separation and appropriation. Neither defendants or any of their agents saw any of the flour which remained after the drayman took away the seventeen barrels, nor had they seen any part of the one hundred at any time prior to the hauling of the seventeen barrels, nor did they know of the sales to Smith and Sweeney, or the removal of any flour by them until after the fire.
    “Fourth. The usage of business in Cincinnati, between buyers and sellers of flour, at and before the dates named, was this: Flour arrives at the depots consigned to commission merchants. The railroad company notifies the merchant of its arrival, who pays the freight and signs a full receipt acknowledging the delivery of the flour to him. The railroad company then stores the flour in a particular location or compartment in its depot, of which the merchant is advised; he then makes sales, and upon the conclusion of an agreement of sale, he hands to the buyers an order upon the railroad company, for the number of barrels called for by the contract. The purchaser sends liis dray or wagon with the order. The driver delivers the order to the railroad clerk, who points out the location or compartment in which the flour, against which the order is drawn, is contained, and the driver proceeds to load his vehicle. If the order calls for a certain number of barrels, and the compartment contains a larger number, the driver makes the selection and removal of the number to which he is entitled, and receipts for them. The order is left with the railroad company, when the first load is hauled, and separate receipt given by the hauler for the amount of each load. The parties to this suit understood and pursued this, the usual mode of transacting this business. The order from the seller to the buyer upon the railroad company, specifies the number of barrels, the number of the car upon which the flour was transported to the depot, and the number of the location or compartment in which it is stored, also the brand and quality of the flour.
    “ Fifth.. The one hundred barrels of flour before referred to, was all that was in the location in which it was stored on the 28th, 29th and 80th of August, and it was all alike, and answered the terms of the contract between plaintiffs and defendants in all respects.”
    The conclusions of law were:
    “ First. That upon the facts as found by the court, the title to the thirty-three barrels of flour destroyed in the depot, remained in the plaintiffs until the destruction thereof by fire, and did not pass to defendants.
    “ Second. That the plaintiffs are not entitled upon said facts, to maintain an action against the defendants as to said thirty- three barrels as for goods bargained and sold, or goods sold and delivered.

      “ Third. It is therefore adjudged that defendants go hence without day and recover their costs in this behalf expended and taxed at $ . To all of which said plaintiffs, by their counsel, except.
    “ Judgment and findings of court for defendants. Plaintiffs except. Motion for new trial overruled, to which plaintiffs except.”
    This judgment was affirmed by the district court.

      Ramsey & Matthews and C. B. Matthews, for plaintiffs in error:
    We claim, 1st, that there was a separation of the thirty-three barrels from any and all other ñour, and a conclusive appropriation of them to the purchasers, by the sellers, and that the possession had been vested in the defendants, so that, in any view of the law, the title had passed. Woods v. McGee, 7 Ohio, pt. 2, p. 127; Hooban v. Bidwell, 16 Ohio, 509; Story on Sales, § 296; Hanson v. Meyer, 6 East 614; Young v. Miles, 23 Wis. 643; Cloud v. Moorman, 18 Ind. 40 ; Horr v. Bucker, 6 Cal. 489; s. c., 8 Cal. 603; Watts v. Hendry, 13 Florida, 523.
    2nd. That such separation and appropriation were not necessary, and that the title would have passed, had the entire lot of one hundred barrels remained in the depot until the close of the transaction.
    Assuming that there was no separation of fifty barrels from the larger quantity, the plaintiffs were still entitled to recover upon two grounds: 1. The transaction gave defendants — the vendees — access to the entire lot of flour- — and the power to withdraw the quantity bargained for, without any further act by vendors. This brings the case within the rule asserted in Weld v. Cutler, 2 Gray, 195, and similar authorities. Brewer v. Salisbury, 9 Barb. 511. 2. Where an order is given upon a warehouseman for a specific quantity of goods, being but a part of a greater quantity, all of the same character, the title passes, upon the acceptance of the order. Cushing v. Breed, 14 Allen, 376; Carpenter v. Graham, 42 Mich. 191; Young v. Matthews, L. R., 2 C. P. 127; Kimberly v. Patchin, 19 N. Y. 330 ; Hurff v. Hires, 17 Am. L. Reg. N. S. 11; s. c., 18 Ib. 161; Russell v. Carrington, 42 N. Y. 118 ; Waldron v. Chase, 37 Me. 414; Chapman v. Shepard, 39 Conn. 413; 42 Mich. 86; 71 Me. 78 ; 6 Randall, 473.

      P. H. Kumler, Hrausin Wulsin and James H. Perhins, ■for defendant in error,
    claimed that there was no such separation and appropriation as to pass title to defendants, and cited, Woods v. McGee, 7 Ohio, 467; Chase v. Washburn, 1 Ohio St. 244; Smith Merc. Law, 483, Am. ed.; Outwater v. Dodge, 7 Cowen, 85; Davis v. Hill, 3 N. H. 382; Donner v. Thompson, 2 Hill, 187; Olyphant v. Baker, 5 Denio, 379; and see Benjamin on Sales, 3 ed. §§ 352, 359, 360; Blackburn on Sales, 128 ; Lynch v. O'Donnell, 127 Mass. 311; Heyward's Case, 2 Coke, 36; Aldridge v. Johnson, 7 E. & B. 885, 901, 26 L. J. Q. B. 296; Coffey v. Quebec Bank, 20 U. C. C. P. 110, 155, 483; Scudder v. Worcester, 11 Cush. 573; Bailey v. Smith, 43 N. H. 141.
   Johnson, C. J'.

Since the decision of Whitehouse v. Frost, 12 East, 614, the cases bearing on the question here involved have been numerous, but by no means uniform. The tendency of the more recent cases has been to follow that case, though its correctness has been ably challenged. This tendency has arisen out of the apparent necessity of adapting the principles of the common law to the changes in the new methods adopted for the transaction of business.

The accepted principles of right and justice form the groundwork of the law of contracts. In all questions involving contract relations, the convenience and wants of business give rise to usages which become part of the contract, where it is made with reference to such usages. This is often called the expansive property of the common law, but it is rather the application of accepted principles of right and justice, as evidenced by common law, to new phases and methods in the transaction of business.

In view of the nature of this particular business, in the case at bar, and the known usage governing buyer and seller, we think it clear that, as between them, by the delivery of the order from the seller, by the purchaser to the warehouseman, and his acceptance of the same, the right to the fifty barrels of flour wras perfected in the purchaser, and that thereafter it became his property. It is true, there were one hundred barrels out of which the order was to be filled, but it was all of the same quality, and by the known usage, the only delivery to be made by the seller, was by an order on the warehouseman, winch, when presented, entitled the purchaser to separate and remove the property.

No selection, properly speaking, had to be made, as all the barrels were alike, but only a counting off and separation, and in this respect it differs from those cases where it is the intention of the parties that there is to be a selection or designation out of the larger quantity. The effect of a known usage on such a transaction is settled in Steel Works v. Dewey, 37 Ohio St. 242. In. that case, Dewey, Yance & Company had a contract for a large quantity of ore, belonging to the Iron Mountain Company, to be taken from a larger quantity lying on the bank of the river. They sold to the Steel Works part of the ore so situated, and gave the purchaser an order on the Iron Mountain Company for the same, which was presented and accepted. By the terms of the contract, and by the usage of the business, purchasers were to take away their ore by boats during the year’, or the order would be canceled. Owing to ice and other causes, the ore was not taken away by the Steel Works during the year, though it was there for them in mass with the larger lot. It was held, that as between Dewey, Yance & Company and the Steel Works, and in view of the usage, the sale was completed, and the right to the ore vested in the Steel Works, without any separation from the larger mass. We think this case is decisive of the case at bar.

Wood v. McGee, 7 Ohio, pt. 2, p. 128 (169), is relied on to sustain the court below, and but for the effect of the known ■usage, the language of Judge Grimke sustains this claim. An examination of the facts of that case will show, that while the judgment is right, yet it did not necessarily depend ujlbn the principles discussed and declared by the learned judge. That was trover by Woods against McGee, a warehouseman, for the wrongful conversion of three hundred barrels of flour, which ’ he claimed to own. The facts were these: Swearinger owned fifteen hundred barrels of flour, varying in value from twenty-five to fifty cents per barrel, which was stored with McGee, a warehouseman. Out of this lot, Swearinger sold to Hutton six hundred barrels, and bn the 23d of April, gave , him an order on McGee for the same. On the same day, Hutton assigned the order to Gordon and Sidwell. Seven days thereafter, Gordon assigned to plaintiff, Woods, all his interest in the oi’der and purchase. This was on May 1. The order was not presented to the warehouseman until May 21, when Woods, as assignee of Gordon’s interest, received from McGee three hundred ban’els, and Sidwell received three hundred barrels, and in each case McGee took a receipt for the amount, from the respective parties. Wood sued for the three hundred barrels delivex’ed to Sidwell, on the ground that he had purchased the same of Sidwell, prior to said delivery, through his agent, Gordon. Of this sale McGee had no notice, and it appears that Sidwell, at the time he received the flour, presented the oi’iginal order with the assignment thereon by Ilntton to himself and Gordon, and with the assignment of Gordon, only of his interest to Woods. Looking, therefore, to the ordei’, one half this flour belonged to Sidwell, when delivered to him, and the warehouseman who delivered the same to him in good faith, could not, on any principle of justice, be charged in trover in favor of an unknown purchaser, when he had strictly complied with the terms of the order showing the right in Sidwell.

The distinction between that case and the one af'bax-, is so manifest, that even conceding the correctness of the principles stated by the learned judge, independent of any usage on the subject, and it is unnecessaxy to question them, they do not control in this case.

1st. There the question was considered, unaffected by any usage, in the light of which the parties acted.

2d. in that case, the order was never presented by the holders and accepted by the warehouseman, as in this, nor does it appear that he knew of its existence, or of the assignments indoi’sed thereon, until the day when all the flour was delivered,' one half to each assignee, as directed by the order. So far, therefore, as the acceptance of the order by the warehouseman affects the question of ownei’ship, as between seller and buyei’, the cases are unlike.

3d. The flour varied in price, and therefore in marketable quality, and in all such cases, there is to be a selection before the title passes.

This opinion might be extended and perhaps made more interesting by an analysis of the numerous cases on the subject both ancient and modern, but we content ourselves with a reference to some few of them, without attempting more. We hold that upon the facts found by the court, showing the well known usage of the business, it is manifest that upon the presentation and acceptance of this order, the sale was completed, and the subsequent loss of the flour, while stored at the depot must fall on the purchaser. Steel Works v. Dewey, 37 Ohio St. 242; Young v. Miles, 23 Wis. 643; Cloud v. Monman, 18 Ind. 40; Horr v. Barker, 8 Cal. 489 ; Cushing v. Breed, 14 Allen 376; Kimberly v. Patchin, 19 N. Y. 330; Waldron v. Chase, 37 Maine, 414; Chapman v. Shepard, 39 Conn. 413 ; Whitehouse v. Frost, 32 East, 614; also notes to Hurff v. Hires, 17 & 18 Am. Law Reg. 17, 161, in which the whole subject in exhaustively discussed and the cases reviewed.

Judgment reversed and cause remanded.


source: Caselaw Access Project

author: Upson, J.

license: Public Domain

text:
    Biggins v. Jones.
    In proceedings under the act to provide for the partition of real estate, (S. & O. Stat. 898), the commissioners appointed to assign dower, and make partition of the lands described in the petition, subject to the dower estate, stated in their report an assignment of dower by metes and bounds, and being of opinion that partition of the “ balance ” could not be made without manifest injury thereto, made and returned to the court their estimate of the value thereof in money, but made no partition of any part of the estate. Held: That, in the absence 'of any evidence to the contrary, it must be presumed that the word “ balance,” in the report of the commissioners, referred to the estate of the parties in the entire tract of land, including that part assigned to the widow as her dower, and not to the residue of the land excluding the part thus assigned.
    Error to the District Court of Morrow county.
    In October, I860, William Jones and Mary Ann Jones filed, in the court of common pleas of Morrow county, their petition against Lavina Kelly and others, for the partition of certain real estate described in the petition, and the assignment of dower therein. The court on hearing the petition made an order that partition be made, and dower assigned, and in pursuance of this order a writ of partition was issued to the sheriff of the county. The commissioners named in the writ, filed their report on the twenty-seeond day of February 1866, assigning the dower estate of Lavina Kelly by metes and bounds, and stating that, being of opinion that the partition of the balance could not be made without manifest injury thereto, they estimated the value thereof at $4,625.75. The court approved and confirmed the report, and thereupon William Jones aud Mary Ann Jones electing to take said estate at the valuation of the commissioners and having paid to the other parties their respective proportions of the appraised value, the said estate was, by the court, adjudged to said William and Mary Ann Jones, and the sheriff ordered to execute to them a deed thereof in fee simple. In accordance with this order the sheriff executed to William Jones a deed of all the land described in the petition for partition, subject to the dower estate, which deed was recorded on March 21,1866. After the death of Lavina Kelly, the plaintiffs in this action, who were defendants in the partition case filed their petition, setting forth the proceedings in the suit for partition, and the execution of the sheriff’s deed, alleging that, by mistake and inadvertence of the draftsman, the entire tract of land was included in the description of the premises therein described, instead of' excepting therefrom that part assigned to Lavina Kelly as her dower and omitted from the appraisement made by the commissioners. The plaintiffs pray that the sheriff’s deed, so far as it relates to the land set off to Lavina Kelly, may be set aside. An answer to the petition was filed, and after trial in the court of common pleas, the case was taken, by appeal, to the district court, which rendered a judgment in favor of the defendants. This proceeding is prosecuted for the purpose of reversing the judgment of the district court. The other facts in the case, so far as they are material, are stated in the opinion of the court.

      A. J. ds J. C. Dunn and F. K. Dunn, for plaintiffs in error.

      Dcdrynyple c6 Powell, for defendant in error.
   Upson, J.

The petition filed by the plaintiffs in the court of common pleas, after stating the partition proceedings, and the execution and delivery of the sheriff’s deed to the defendant William Jones, alleges that, “by mistake and the inadvertence of the draftsman of said deed,” the entire tract of land was included in the description of the premises conveyed, “ instead of excepting therefrom, and omitting, the thirty-eight and forty-five hundredths acres which had been assigned by metes and bounds to the said Lavina Kelly as and for her dower, and omitted from the appraisement made by the commissioners aforesaid.” The defendants in their answer deny that the sheriff’s deed embraced and conveyed that part of the land assigned to Lavina Kelly as her dower estate, “ through any mistake or inadvertence of the draftsman ” of the deed, which they aver was made in pursuance of, and in conformity with, the proceedings, orders and deci-ees of the court of common pleas! The bill of exceptions shows that no testimony was offered in the district court except the record of the proceedings in partition and the sheriff’s deed. These proceedings were under the “Act to provide for the partition of real estate (S. & C. 893) and are governed by that act.

Did the district court err in finding the issues thus made, in favor of the defendants ?

The object of the statutes providing for the partition of real estate, is to enable each owner to possess and control his own share of the estate, and for that purpose to have the estate divided among the several owners where that can be done without manifest injury. In case that cannot be done, the statute provides for the appraisal of the estate, and its sale at public auction, unless one or more of the parties elect to take it at its appraised value.

If any widow is entitled to dower in the estate, it may be set off in such manner as to be contained in the share or shares aparted to one or more, of the proprietors of the estate, or the commissioners may, if deemed for the interest of all parties concerned, make partition of the residue of the estate after having set off such dower, leaving such estate of dower to be partitioned after the same should cease and determine.

In their petition for partition, William Jones and Mary Ann Joues demanded partition of the premises, described in the petition that their interest might be set off to them in severalty; and that the dower of Lavina Kelly might be assigned, or if it appeared that partition of said lands could not be made without manifest injury to the same, then, that the premises might be sold, or other proper order be taken for the same pursuant to the statute.

The court of common pleas, upon hearing the petition, ordered that one full equal one third- part of the lands in said petition described be assigned and set off to the said Lavina Kelly as her dower estate,” and that “ partition be made of said lands subject to said dower estate in the following proportions, to wit,” &o.

In pursuance of this order a writ o'f partition was issued to the sheriff, commanding him to cause Lavina Kelly to be endowed of one third of the real estate, and “ partition to be made of the same lands, subject to said dower estate,” in the proportions stated in the order.

In accordance with the provisions of the statute, it was the duty of the commissioners, after setting off the dower estate, to partition the entire tract of land, including that part assigned as dower, unless they were of opinion that the estate could not be divided according to the demand of the writ without manifest injury to the value thereof, in which case they are required to make and return to the court a just valuation of the estate, unless they deemed it for the interest of all parties concerned to make partition of the residue of the estate, after having set off the dower, leaving the part assigned as dower to be partitioned after the determination of the widow’s life estate, and if they did not make partition of the entire estate, their reason for not doing so should be stated in their report.

The commissioners in their report set off to Lavina Kelly as her dower estate, a part of the tract by metes and bounds, and then say, “and being of opinion that partition of the balance cannot be made without manifest injury thereto, do estimate the value thereof in money at $4,625.75,” but did not make partition of the residue of the estate after having set off the dower. It is insisted by the plaintiffs in error that the word “ balance,” used in the report, means the residue of the estate exclusive of that part assigned as dower, and that it is incapable of any other meaning.

It is obvious, however, that it may equally refer to the estate of the parties in the whole property, including that part covered by the dower estate; and in the absence of all evidence to the contrary, it must be presumed that the word was used in the sense which implies that the commissioners did not neglect their duty.

As before stated it was their duty to partition the entire estate, if it could be done without manifest injury, and a report that the estate could not be partitioned, exclusive of the part set off to the widow, would not show that it could not be partitioned including that part.

It is then to be presumed that the balance ” of which, in the opinion of the commissioners, partition could not be made without manifest injury, and which they therefore appraised, was the whole of the land described in the petition, subject to the dower estate.

This presumption is aided by the fact that the residue of the land, exclusive of the dower estate, is by the partition divided into two unequal parts, separated from each other by the dower estate, and that no separate appraisal thereof was made; and also by the fact that the sheriff’s deed was placed on record within a month after the report of the commissioners was filed, when any doubt as to the meaning of the language used in the report could easily have been removed, and any mistake corrected, either in the report or the order of the court confirming it, by calling upon the commissioners to testify whether in their appraisal of the estate they did, or did not, include the part covered by the dower estate.

Upon the whole evidence we are satisfied that there was no error in the judgment of the district court.

Judgment affirmed.


author: Doyle, J.

text:
    Crosby v. Hill.
    A broker, who was not intrusted with tbe possession of the property, contracted in bis own name to sell the same to a vendee, who had no knowledge that the broker was not the real owner, but dealt with him as such. The broker notified his principals that he had sold for them, and directed where to ship the property to the purchaser. The owners, without any knowledge that the broker had contracted in his own name, and without any conduct on their part clothing the broker with authority to receive payment for them, or any possession, actual or constructive, of the property, delivered the same to the vendee. Held : .Payment by the purchaser to the broker, under such circumstances, is not a bar to the right of recovery by the owner.
    Motion for leave to file petition in error to tbe Superior Court of Cincinnati.
    Tbe plaintiffs, I. S. Crosby and W. W. Collins, filed tbeir petition against tbe defendant William H. Hill, alleging tliat on or about March 12, 1881, they were partners and engaged in tbe lumber business at Greenville, Micb. That one Rotb, a lumber broker in Cincinnati, represented to them that be bad, as sucb broker, sold for them to tbe defendant one car-load of shingles at $3.55 per thousand; that thereupon tbey shipped to tbeir own order 70,000 shingles, to be delivered to Hill by the railroad company, upon payment by Hill of tbe freight thereon; that about March 31,1881, Hill, or some one for him, paid the freight and received the shingles, but he has refused and failed to pay plaintiffs for them, or to return them, and prays for a judgment for $197.50, the value of the shingles after crediting the freight paid.
    The answer denies the conversion of the shingles, the ownership of the plaintiffs, and any indebtedness to the plaintiffs; and avers that defendant bought the shingles of Roth, and paid him the full value thereof, and that when he made such payment he had no knowledge from whom Roth purchased the same, or that plaintiffs claimed any title or interest therein. The allegation of want of knowledge is denied by the reply.
    Upon the trial the plaintiffs offered evidence that Roth in advising them of the sale, directed them to ship the goods to Glendale and send the invoice to Cincinnati; that thereupon they shipped the goods to Glendale to their own order and mailed to defendant at Cincinnati an invoice and also an order on the railroad agent at Glendale to deliver the goods on payment of the freight.
    The defendant offered evidence that he dealt with Roth as a principal, not knowing that he was a broker; that he never received the invoice and delivery order; that from the time of making the contract with Roth until after the middle of April, he was a member of the legislature and living at Columbus attending its sessions; that he there received notice from Roth that the shingles were about to arrive ; that he instructed his agent to receive them and pay the freight, which was done; that he paid Roth for the same on April 21, 1881, and that, lie never heard that plaintiff claimed any interest in them until May 26, 1881, when they wrote demanding payment.
    It was admitted upon the trial that the plaintiffs were in fact the owners of the shingles, notwithstanding the denial of such ownership in the answer.
    Part of the testimony of the plaintiffs consisted of a deposition of one of them, taken under a notice which omitted to state that such plaintiff would be examined.
    The court, by agreement of counsel, submitted to the jury the single question whether the defendant at the time he paid Rqth, had notice of plaintiff’s rights or claim; and the jury having reported that they were unable to agree upon that question, the court directed them, that however that question might be determined, the plaintiffs were entitled to a verdict, and to return such verdict, leaving only the question of the value of the property for their determination. In response to such charge a verdict was returned for the plaintiff. The charge was excepted to by the defendant, who also excepted to the refusal of the court to give certain instructions asked by him. A motion for a new trial was made and heard by the court in general term ; overruled and judgment entered on the verdict. Leave is now asked to file a petition in error in this court to reverse that judgment.

      Cornell & Marsh, for the motion :
    Cited Judson v. Stillwell, 26 How. Pr. 513 ; 46 Iowa, 181; Bordmanville Mch. Co. v. Dempster, 2 Canada S. C. R. 21 ; Boulton v. Jones, 2 H. & N. 564; 123 Mass. 28.

      Wilby <& Wald, contra :
    Cited, Hamet v. Letcher, 37 Ohio St., 356 ; 2 Kent (12th ed.) *622; 1 Moody & Rob. 326; 2 Barn. & Ald. 137; 7 Best & Smith, 515 ; 24 Mich. 36: 88 Ill. 298; 15 Reporter, 127; 105 U. S., 360.
   Doyle, J.

The allegations of tbe petition that Roth, a lumber broker in Cincinnati, represented to plaintiffs that, as such broker, he had sold for them to the defendant, a car load of shingles, and that such shingles were shipped by them to their own order, to be delivered to the defendant by the railroad company upon the payment of the freight, are not denied in the answer. There is no allegation in the answer, nor is there any thing in the evidence tending to show that the plaintiffs ever authorized the broker to receive payment for them, ever intrusted the broker with the possession of the property, or by. any conduct of theirs, enabled him to appear as owner of the goods, and thereby impose upon a third person who was without fault; or that the plaintiffs had any knowledge that Roth contracted in his own name and not in theirs, from which any ratification of such contract can be inferred, but the contrary affirmatively appears from the allegations of the petition. The case made by the defendant is that he dealt with Roth, believing him to be the owner, and paid him as such without knowledge of the rights of plaintiffs.

The answer contained a denial of the ownership of plaintiffs, but that was withdrawn upon the trial and the title of plaintiffs admitted. Without such denial the question now presented, might well have been raised by a demurrer to the answer. In view of the peremptory charge of the court, all the proof offered by the defendant pertinent to the issue, must be taken as true, and as that proof tends to sustain the allegations of the answer (with the denial of ownership omitted), the question is substantially the same as would be presented by such a demurrer.

The case presented, therefore, is this : A broker who is not intrusted with the possession of property, contracts in his own name to sell the same to a vendee who has no knowledge that he is not the real owner, but deals with him as such. The broker notifies his principal that he has sold for them, and directs where to ship-the property to the vendee. The owners, without any knowledge that the broker has contracted in his own name, and without any conduct on their part clothing the agent with authority, express or implied, to receive payment for them, or any possession actual or constructive of the property, deliver the same to the vendee. Will payment by the vendee to the broker under such circumstances, without knowledge of the rights of the owner, prevent the owners from recovering ?

In Baring v. Corrie, 2 B. & Ald. 137, this question is distinctly answered in the negative. The broker has not the possession of the goods and so the vendee cannot be deceived by that circumstance ; and besides, the employing of a person to sell goods as a broker does not authorize him to sell in his own name. If, therefore, he sells in his own name he acts beyond the scope of his authority, and- his principal is not bound. But it is said that by these means the broker would be enabled by his principal to' deceive innocent persons. The answ-er, however, is obvious, that he cannot do so unless the principal delivers over to him the possession and indicia of property.” Ibid. 148.

In Drakeford v. Piercy, 7 Best & Smith, 515, there was a declaration for goods sold and delivered; plea, that the plaintiff sold and delivered the goods by one Davies, his agent in that behalf; that defendant purchased of Davies, not as agent, but as vendor on his own account; that Davies sold as actual vendor; that defendant had no notice or knowledge to the contrary until after payment; that he paid the whole price to Davies, bona fides, believing that he was vendor on his own account and entitled to receive payment. A demurrer to the plea was sustained.

After citing Barring v. Corrie, Blackburn, J., says : “ The defense of payment here must rest on the plaintiffs having by improper conduct, enabled Davies to appear as proprietor of the goods, or having clothed him with real or apparent authority to receive payment. But the plea carefully avoids any statement to that effect.”

To the same effect is Semenza v. Brinsley, 114 E. C. L. 18 C. B. (N. S.) 467.

On the other hand in Borries v. Imperial Ottoman Bank, 9 L. R. (C. P.) 38, to a similar declaration the plea was u the goods were sold and delivered to the defendants by S. & Co., then being the agents of the plaintiff, and intrusted by the plaintiff with the possession of the goods as apparent owners thereof; that S. & Co. sold in their own name as their goods, and that defendants had no knowledge that plaintiffs were the owners of the goods, &c. The plea was held to be good because of the statement, absent from the pleas in the former cases, that the agents were intrusted with the possession as apparent owners.

The American authorities sustain the rule thus established by the English courts. Wharton on Agents & Agency, §§ 712-714 ; Story on Agency, §§ 28, 33, 109, Benjamin on Sales, 3 Am. ed., 742: Seiple v. Irwin, 30 Pa. St. 514; Riggins v. Moore, 34 N. Y. 417; Saladin v. Mitchell, 45 Ill. 83 ; Brown v. Morris, 83 N. C. 254; Clark v. Smith, 88 Ill., 298; Korneman v. Monaghan, 24 Mich. 36 ; McKindly v. Dunham, 55 Wis. 515; and see Roland v. Gundy, 5 Ohio, 202.

To the rule thus established there are certain exceptions, resting upon the usages of certain lines of business. Wharton on Agency, § 713 ; Story Agency, § 109 ; Benj. Sales, § 742. But such usages are matters to be pleaded and proved, and are wholly absent from the case at bar.

The distinction between this case, a.nd one where an agent is acting within the scope of his authority, or a bailee, factor or commission merchant, intrusted with the possession of the property and the power to sell, and thus enabled to deal with it as his own, is very apparent. In the latter cases like Thorne v. Bank, 37 Ohio St. 254, where the agent sells the property, receives payment and appropriates it to his own use, the loss must fall upon the principal who confides in the agent and places the power in his hands to deceive purchasers.

The question submitted to the jury, whether defendant had knowledge of plaintiff’s claim was not controlling. Its determination in favor of the defendant, would not have defeated plaintiff’s recovery. It was therefore an immaterial issue, and the peremptory charge was right. There were no facts in the case that tended to show a ratification of the unauthorized contract of the agent, for the reason that such unauthorized contract was not known to the plaintiffs. Bennecke v. Insurance Co., 105 U. S. 360. Defendant had the means of knowledge at his command, and tiie fact that Roth had not the possession of the property he was selling, was sufficient to require of defendant that, before payment, he should ascertain to whom payment was due.

There was no error in admitting the deposition. Where a witness is competent and the testimony relevant, and no exceptions are taken to it before the commencement of the trial, the objection is waived. Rev. Stats. § 5285. Besides, in the view we take of the case, there could be no injury to the defendant thereby.

Motion overruled.


text:
    Bank v. Zent.
    1. The power to receive special deposits is conferred by the national banking act, upon banks organized under that act.
    2. Where a national bank has been accustomed to receive United States bonds, as special deposits, gratuitously, it is liable for any loss thereof occurring through the want of that degree of care, which good business men would exercise in keeping property of such value.
    3. A demand of said bonds, and a refusal by the bank to deliver the same, with no other explanation of such, refusal than the statement that the bank has no such bonds in its possession, furnish sufficient proof of loss by such negligence as will render the bank liable thereto.
    Error to the District Court of Richland county.
    The original action was brought in the court of common pleas of Richland county, to recover the value of certain United States bonds alleged to have bean deposited with the First National Bank of Mansfild, and by said bank wrongfully appopriated to its own use.
    The First National Bank of Mansfield is an association organized under the act of Congress entitled “ An Act to provide a National Currency,” &c., approved June 3, 1864.
    The court of common pleas rendered judgment in farvor of the present defendants in error, which judgment was affirmed by the district court, and this proceeding is prosecuted to reverse the judgment of the district court.
    Five other cases against said bank and its receiver and involving the same questions, were, by agreement of the parties, tried in the court of commom pleas, and are now heard with this case. The facts are stated in the opinion of the court.

      Tenner <& Tracy and H. C. Hedges, for plaintiff in error,
    claimed that a national bank was not responsible for for special deposits unless gross negligence is shown, and cited Bank of Carlisle v. Graham, 100 U. S. 702; Bank v. Rex, 89 Pa. St. 308; Scott v. Bank, 72 Pa. St. 471; Bank v. Smith, 62 Pa. St. 47.

      Dirlam & leyman, for defendants in error,
    claimed that a national bank taking special deposits with the knowledge of its directors and stockholders and converting them to its own use is liable therefor. Bank Graham, 100 U. S. 702; Whitney v. Bank, 50 Vt. 388; s. c., 47 Vt. 546. And the demand and refusal to redeliver cast upon the bank the burden of explanation. Darling v. Younker, 37 Ohio St. 487; Cutting v. Marlor, 78 N. Y. 454; Schwerin v. McKie, 51 N. Y. 180; Scouler Bailm. 24 and note 1; Burnell v. N. Y C. R. R. Co., 45 N. Y. 184.
   Upson, J.

In behalf of the plaintiffs in error it is insisted, that whatever contract, or arrangement, existed, was between the defendants in error and W. S. Hiekox individually, and not as an officer of the bank, and that if he did attempt to bind the bank, without the knowledge of the directors, the agreement was ultra vires, and absolutely void. Upon a careftd examination of the testimony, all of which is set forth in the bill of exceptions, we are of opinion that it fully warranted the court of common pleas in finding that the bonds described in the petition were received by the bank as a special deposit for safe keeping; that with the full knowledge, and acquiescence, of its directors and officers, the bank engaged in the business of receiving United States bonds on deposit for safe keeping, and that Hiekox, as cashier, had general authority to receive such special deposits for the bank. We do not think the right of the defendants to recover the value of the bonds depends upon proof that special authority was given to the cashier in this particular instance.

The testimony shows that some of the bonds were actually sold, and the proceeds converted to the use of the bank, and it might well have been regarded as proved, that all of the bonds in this case have been thus converted, but we decide this case upon grounds common to all of the cases submitted with this.

The first question of law presented by the record is, had the cashier power to bind the bank by receiving the bonds as a special deposit for safe keeping. In the case of Wiley v. First National Bank of Brattleboro (47 Vt. 546), the supreme court of Yermont decided that the taking of special deposits to keep, merely for the accommodation of the depositor, is not within the authorized business of national banks, and that their cashiers have no power to bind them on any express contract accompanying, or any implied contract arising out of, such taking. In a nutnber of other cases decided by state courts, it was also held that national banks were not responsible for the safekeeping of special deposits intrusted to their care, even when such deposits were made with the knowledge and acquiescence of the directors, and that the banks could not be held liable even for the gross negligence of their officers. These decisions rest upon the assumption that the aet under which national banks are organized expressly sets forth the powers confen’ed upon those banks, and does not include among them power to receive special deposits, and that such power is not given them by the grant of all such incidental powers as shall be necessary to carry on the business of banking. The proper construction of the banking act has, however, since this action was brought, been conclusively determined, by the supreme court of the United States, in the case of the First Nat. Bank of Carlisle v. Graham (100 U. S. 699), in which, that court decided, not only that if a bank be accustomed to take such deposits as the one in question, and this is known and acquiesced in, by the directors, it is liable to the same extent as if the deposits had been authorized by the terms of the charter, but also decided that the provision of the law authorizing a bank after its failure, “ to deliver special deposits ” clearly implied that it might, as a part of its legitimate business, receive such special deposits. In the case now under consideration it was proved to have been a part of the ordinary business of the bank to receive United States bonds for safe keeping, and it follows that the cashier in dealing with the defendants in error acted within the scope of his authority as cashier, and that the bank was therefore bound by his acts.

The degree of care required of the bank depends upon the nature of the bailment. There is strong proof that the bonds were taken not merely for the accommodation of the owners, but for the benefit and profit of the bank. It may be conceded, however, for the purpose of this decision, that no advantage or compensation was to be received by the bank for the responsibility which it incurred. It is usually stated that a bailee who is to receive no reward is liable only for gross negligence, and some of the cases hold that such a bailee is responsible only for the want of that care which is taken by the most inattentive. But that rule cannot be applied to all cases of bailment without reward; for when securities are deposited with persons accustomed to receive such deposits, they are liable for any loss occurring through the want of that care which good business men would exercise in regard to property of such value. This was the degree of care required of the bank in this case. Were the bonds lost for the want of such care ? They were demanded by the defendants in error, and the only excuse given for not delivering them, as stated in the answer, was that “ the said bank not having any such bonds in its possession did not deliver any to the plaintiffs.” No explanation was offered and no reason given for the bonds not being in the possession of the bank. We hold that under these circumstances, the proof of demand, and the refusal to deliver, was sufficient evidence that the bonds had been lost by the gross negligence of the bank, if not converted to its own use.

Judgment affirmed.


author: Okey, J.

text:
    Beer v. Insurance Company.
    Where a policy on the assured’s “ general stock of hardware and agricultural implements,” in a village in this state, provided that “ if the assured shall keep gunpowder [ or ] petroleum, without written permission in this policy, then this policy shall be void,” and in an action on the policy the insurer relies on a breach of the condition, evidence is not admissible to show a custom among hardware dealers in the villages in Ohio to keep for sale such articles, in limited quantities, as part of the stock.
    Error to the District Court of Ashland county.

      Grosscup dh Kenny, for plaintiffs in error:

      Baxter v. Leland, 1 Blatch. 526; 2 Story’s Cont. (6th ed.) 542, note; 2 Parsons on Cont. 535, n. (e.), 537, n. (j.), 538, n. (g.); Wall v. Ins. Co., 14 Barb. 383 ; Met. Con. 275 ; Mondinger v. Ins. Co. 2 Hall, 490; Crosby v. Ins. Co., 5 Gray, 504; Haley v. Dorchester, 12 Cray, 545; Franklin, Ins. Co. v. Updegraff, 43 Pa. St., 350; Steinbaugh v. Ins. Co., 54 N. Y. 90; Hall v. Ins. Co., 58 N. Y. 292; Niagara F. Ins. Co. v. Degraff, 12 Mich. 124; Collins v. Ins. Co., 79 N. C. 279; Archer v. Ins. Co., 43 Mo. 434; McFarland v. Ins. Co., 6 W. Va. 429; 8 W. Law J. 470 ; Wood on Ins. 840 ; N. Y. Eq. Ins. Co. v. Lauglin, 6 Wend. 623; Garrigan v. Ins. Co.,
      53 Vt. 418; Washington Ins. Co. v. Merchants’ Ins. Co., 5 Ohio St. 450; Mobile Ins. Co. v. McWilliams, 27 Ala. 77; Ætna Ins. Co. v. Jackson, 16 B. Mon. 242; National Ins. Co. v. Crane, 16 Md. 260 ; Moore v. Ins. Co., 16 Mo. 98 ; Hernandez v. Sun Ins. Co., 6 Blackf. 317; Wells v. Ins. Co., 44 Cal. 397; Snapp v. Ins. Co., 8 Ohio St. 461.

      A. T. Brewer, for defendant in error :

      Chase v. Washburn, 1 Ohio St. 252; Barrett v. Ins. Co., 7 Cush. 175; Union, etc. Ins. Co. v. Foote, 22 Ohio St. 340; 2 Parsons on Con. 546, in addition to eases cited in the opinion.
   Okey, J.

The action in the court of common pleas was on a policy of insurance issued by the Forest City Mutual Insurance Company, to Beer & Co., on their general stock of hardware and agricultural implements contained in the two-story brick building and frame addition, situated on the north side of Main street, Ashland, Ohio.” The words were written on the face of the policy. In the printed part, among the conditions, was the following : “ If the assured shall keep gunpowder . . . [or] petroleum, . . . without written permission in this policy, . . . this policy shall be void.” No such permission was given. The stock was consumed by fire. Answer, setting forth the above clause in the condition, and the fact that the assured had, without such permission, kept such articles for sale as part of his stock. Reply and evidence in support of it, that at the time the policy was issued, there was and continued to be a custom in the villages of Ohio, including Ashland, for persons engaged as Beer & Co. were, in the retail hardware business, to keep for sale gunpowder not exceeding in quantity 25 pounds, and petroleum not exceeding in quantity one barrel, and that the gunpowder and petroleum referred to in the answer, were kept and retailed in pursuance of such custom. Exception to the testimony. Charge, that such custom, if generally acted on by i^ersons engaged in such retail business in the villages of Ohio, and generally known, was valid, and the policy could not be avoided by keeping such articles without such permission, although the fact that such articles were kept in this store was unknown to the defendant. Exception to the charge. Yerdict and judgment for $1,065.83. Judgment reversed in the district court. Petition in this court by Beer & Go. to reverse the judgment of reversal.

The district court did not err. .Usage “ must not be inconsistent with the words of the agreement.” Steel Works v. Dewey, 37 Ohio St. 212, 250; Ledyard v. Hibbard, 48 Mich. 121, 127. This usage was plainly so. Birmingham Ins. Co. v. Kroegher, 83 Pa. St. 61, is'in point, and other cases fully sustain it. Macomber v. Ins. Co., 7 Gray, 257; Wetherell v. Ins. Co., 16 Gray, 276; Whitmarsh v. Ins. Co., 2 Allen, 581; Commercial Ins. Co. v. Mehlman, 48 Ill. 313 ; McEwan v. Guthridge, 13 Moore P. C. 304. Nor is this inconsistent with Pindar v. Continental Ins. Co., 36 N. Y. 648. There the insurance was upon the stock, “such as is usually kept in country stores,” and the custom was held not to be inconsistent with similar conditions in the policy. The case is referred to in Pindar v. Ins. Co., 38 N. Y. 361; s. c., 17 N. Y. 114. To the same effect as 36 N. Y. 648, is Phoenix Ins. Co. v. Taylor, 5 Min. 192 ; Whitmarsh v. Ins. Co., 16 Gray, 359; cf. Leggett v. Ins. Co., 10 Rich. L. 202 ; Beacon L. & F. Ins. Co. v. Gibb, 1 Moore P. C. N. S. 73. Nor is Birmingham Ins. Co. v. Kroegher, supra, inconsistent with cases which hold that such conditions do not apply where the assured, in the prosecution of his business, necessarily uses the articles specified in such condition. Lawson on Usage, 258, et seg.

Where the written and printed parts of a policy are in apparent conflict, the written part in many cases will prevail, but that rule has no application in this case.

Judgment affirmed.


author: McIlvaine, J.

text:
    Thomas v. Chamberlain.
    1. A creditor of the estate of a deceased person, whose claim has been duly allowed by the administrator, may prosecute an action thereon against the estate after the expiration of eighteen months from the date of the administrator’s bond, and such further time as may be granted by the court for the collection of the assets of the estate.
    2. Verbal notice to the administrator of an estate, by the widow of the deceased, not to allow a specified claim against the estate, is not sufficient proof of fraud on the part of the administrator for afterwards making such allowance.
    3. In an action against an administrator on a note which matured more than fifteen years before the commencement of the suit, where it is alleged in the pelition that before the expiration of fifteen years from its maturity, the note, duly verified, was presented to the administrator for allowance as a valid claim against the estate and the same was duly allowed, an answer which does not deny the fact of such allowance, , but simply avers that the action was not commenced within fifteen years from the maturity of the note, is bad on demurrer.
    4. Where a claim against an estate has been duly presented to and allowed by the administrator, no further allowance by a succeeding administrator do bonis non, is required by the statute.
    5. The allowance of a claim is not conclusive of its validity against the estate, but it may afterwards be disputed and contested by the administrator who allowed it, or by an administrator de bonis non; but in such case, the statute limiting suits on rejected claims to six months, does not apply.
    6. Where the same person is administrator of the creditor as well as the debtor estate, no formal presentation or allowance of the claim within four years from the date of the bond of the administrator of the debtor estate is necessary, but in such case the claim is extinguished as soon as funds applicable to its payment come into the hands of the administrator.

      7. A payment of a part of a claim by an administrator, without disputing the balance is a sufficient allowance of the whole claim.
    Error to the District County of Morrow county.
    The original action was brought by plaintiff in error Smith Thomas as executor of Sophia Snider, against defendant in error, C. IT. Chamberlain, administrator do bonis non of Benjamin P. Truex, in the court of common pleas of Morrow county on November 11, 1873.

      The petition stated the following, in substance: On September 3, 1849, Benjamin P. Truex executed to Sophia Snider two promissory notes for $888 each, payable respectively in five and six years after date, with interest annually after three years. Sophia Snider, subsequently, in the year 1849 died, and Smith Thomas was duly appointed executor of her will. In October 1854, Benjamin P. Truex died, and Smith Thomas was duly appointed executor of his will also. At the death of Truex, the notes above described were outstanding in the hands of Thomas as executor of Sophia Snider. Thomas continued to be executor of Truex’ estate until December 1866, and during that period he sustained the relation of executor to each of the estates, he indorsed several payments upon these notes; the first of which was for $246.12 on March 3,1855, and the last, for $52.74- on March 2,- 1865. The amount of payments thus indorsed (including $207.99 paid by Truex in his lifetime) was $1,388.23.
    In January 1867, Joseph Sutherland was duly appointed administrator de bonis non of the estate of Truex, and shortly thereafter the plaintiff in error duly verified the claim of' Snider’s estate against the estate of Truex, based upon said two notes and presented the same to Sutherland' for allowance, whereupon Sutherland, on the 4th day of January, 1868, as such administrator allowed the same in writing as a valid claim against the estate of Truex. Afterwards on February 24,1870, Sutherland having ceased to be administrator, &c., of the estate of Truex, C. H. Chamberlain, defendant, was duly appointed to that office. It is also averred in the petition, that Chamber-land, as such administrator, on January 19, 1871, allowed the balance on said notes as a valid claim against the estate of Truex, and that no payments have been made on the notes except those credited.
    The petition also contains the following averment:
    “ Plaintiff says that eighteen months since the appointment of said C. II. Chamberlain as such administrator as aforesaid, and the further time of one year allowed him by the said probate court of Morrow county to settle up said estate, have elapsed, and no further time has been allowed him as such administrator, for tbe settlement of said estate ; that said estaféis solvent, and that said adminstrator, C. H. Chamberlain, has paid a portion of the debts thereof in full, and has not made any payment on the claims of plaintiff, above set forth.
    Prayer against defendant as such administrator for balance due on notes.
    Defendant demurred to petition, which was overruled and defendant excepted.
    The defendent thereupon answered as follows:
    “ Defense No. 1. And now comes the defendant, and for answer to the petition of plaintiff, denies that the claims and notes in said petition mentioned, were ever legally and properly presented to and allowed by any executor or administrator of the said Benjamin Truex,- deceased, as valid claims against said estate.
    “ Defense No. 2. And defendant, for a further and second defense to said petition, says that the said plaintiff ought not to have his said action thereof against him as such administrator de bonis non, of said estate, because he says that the allowance by the said Joseph Sutherland, as administrator de bonis non of said estate, of said notes as valid claims against said estate, was procured by the fraudulent collusion of the said Smith Thomas and Joseph Sutherland both the said Smith Thomas and the said Joseph Sutherland well knowing that the same were not valid claims against said estate.
    “Defense No. 3. And said defendant, asa further and third defense to said petition, says that said plaintiff ought not to have or maintain his said action thereof against him as such administrator de bonis non, because he says that said promissory notes and claims in said petition mentioned have been fully paid.
    “Defense No. 4. And defendant, for a further answer and fourth defense, says that said plaintiff ought not to have or maintain his said- action thereof against him, because he says that more than fifteen years have elapsed since the maturity of the said promissory notes and claims in said petition mentioned, and prior to the commencement of this action.

      “ Defense No. 5. And tlie said defendant, for a further answer and fifth defense, says that the said plaintiff ought not to have or maintain his said action against him as such administrator de bonis non, because he says the said Smith Thomas, as such executor, on or about the fifth day of July, a. d. 1871, presented said promissory notes to this defendant as such administrator do bonis non for allowance as valid claims against said estate, and that he disputed the same and refused so to do, and rejected said claims, and that more than six months has elapsed'since refusal and rejection and before the commencement of this action, and this defendant further says that said claims have never been referred in conformity to the provisions of the statute in such cases made and provided.”
    The sixth defense alleged nothing more in substance than the successive appointments of Thomas, Sutherland and Chamberlain as personal representatives of Truex at the dates named, and that each of them within three months after his appointment gave dpe notice thereof as required by law.
    Demurrers to the 4th, 5th and 6th defenses were sustained by the court, and defendant excepted.
    Issues were joined on defenses 2 and 3 by reply.
    Verdict and judgment were rendered in the court of common pleas for the plaintiff. The judgment of the common pleas on error, was reversed by the district court, and this proceeding is prosecuted to reverse the judgment of reversal.

      A. K. & J. G. Dunn, and F. K. Dunn, for plaintiff in error:
    1. An action may be brought on any claim after the expiration of eighteen months. Moore v. O'Brannin, 14 Ohio St. 177; Conger v. Atwood, 28 Ohio St. 13; De Valengin v. Duffy, 14 Peters, 282.
    2. As to the limitation of fifteen years, see Nieemcewicz v. Bartlett, 13 Ohio, 271.
    3. The administrator de bonis non had no right to disregard the acts of his predecessors and reject the claim. Bigelow v. Bigelow, 4 Ohio, 138; Mattoon v. Clapp's Heirs, 8 Ohio, 248; Harter v. Taggart, 14 Ohio St. 122, 126; Moore v. O'Bran

      nin, 14 Ohio St. 177, 181; Stark v. Keeran, 5 Ala. 590. The short limitation of six months within which rejected claims must be sued is highly penal in its nature, and must be strictly construed. It is not a favored right but is purely statutory, and a party seeking to avail himself of this defense must bring himself strictly within the terms of the statute. Unless the case falls clearly within the letter and spirit of the statute, the limitation will not apply. Keenan v. Saxtons Adm'r, 13 Ohio, 41; Harter v. Taggart, 14 Ohio St. 122; Kyle’s Adm'r v. Kyle, 15 Ohio St. 15 ; Stambaugh v. Smith, 23 Ohio St. 584; Reynolds v. Collins, 3 Hill, 36, 38 ; Elliott v. Cronk, 13 Wend. 35, 39; Kidd v. Chapman, 2 Barb. Ch. 414, 422. If these notes had been sued and a judgment rendered on them against the administrator, it -could scarcely be contended that the administrator de bonis non could still reject them. He is in privity with the administrator. Hirst v. Smith, 7 T. R. 183, cited supra. But the allowance of the administrator is “ equivalent to a judgment.” Gilbert’s Adm'r v. Little, 2 Ohio St. 156, 160. It ascertains the amount due, takes away the creditor’s right to sue (S. & C. 584, § 96), and authorizes a suit on the bond as effectually as a judgment. S. & C. 601, § 177; State v. Cutting, 2 Ohio St. 1; Greer v. State, Id. 574-578; Taylor v. Thorn, 29 Ohio St. 569.
    Upon a proper construction of the statute S. & C. 585, 586, 587, 614, §§101, 102,103, 108, 109 110, and 248, which provides that an administrator can only be sued within four years, and an administrator de bonis non iu two years, it is not applicable to the case of a claim which has been allowed. It was intended to fix a limit within which claimants must present their demands against the estate and have their right to be considered “ creditors of the deceased,” passed upon by the administrator or be barred from doing so. Who are and who are not “ creditors of the deceased,” must be determined within that period of four years; but one who has been ascertained by judgment or allowance to be a creditor does not lose his right to enforce his claim against the administrator by failing to sue him for four years. The allowance of the administrator, as already shown above, places the creditor on the same footing as a judgment. Taylor v. Thorn, 29 Ohio St. 559, and. eases cited supra. It puts it out of his power to maintain a suit against the administrator ; for, on an allowed claim by the same statute which makes the limitation, the creditor is prohibited from bringing an action “ until after the expiration of eighteen months from the date of the administration bond, or the further time allowed, by the court for the collection of the assets of the estate.” S. & C. 584, § 96. And this time for the collection of the assets may extend to five years (S. & C., 577, §§ 59-62,) during which time the creditor cannot sue. Thus, under the construction claimed by the defendant in error, the creditor is prohibited by one section of the statute from bringing his action for five years, and under another section of the same statute, he must loose his claim if he does not bring his action in four years. Fisher v. Marsman, 11 Ohio St. 42, 45.
    But whether the claims were allowed b3r Thomas or not, the. limitation on which the instruction is founded would not begin to run while Thomas continued to be Truex’s executor. During that time he was the executor of both estates, representing both the maker and payee of the notes, Semmes v. Magruder, 10 Md. 242. Part payment by an administrator will take a claim out of the operation of the statute of limitations as against the administrator de Toonis non, and it makes no difference that the payment was made to the administrator himself, by his retaining a sum in part payment of his own claim. Semmes v. Magruder, supra. The same case also decides that “ so long as the creditor is administrator, the statute can have no effect upon the demand.” To the same effect are State, use of Stevenson v. Reigart, 4 Gill, 1; Brown v. Stewart, 4 Md. Ch. Dec. 368; Spencer v. Spencer, Id. 456.
    . Olds <& Dickey for defendants, in error :
    This case, when stripped of all extraneous matter, is properly disposed of by the demurrer to the petition. The action was brought against the estate of the deceased debtor. The petition alleges-that the notes on which the action is founded, were duly allowed as a valid claim against said estate by each and all of said executors, respectively. By this allowance, the claims were liquidated and the amounts of the debts fixed by the parties.
    If the statements of the petition are true it became the duty of the executors to pay this claim within eighteen months. Rev. Stats. § 6108 ; S. & C. 584 § 96.
    By section 6210, Rev. Stats.; S. & O. 601, § 117, a claim duly allowed is .equivalent to a judgment thereon, and that when a judgment has been recovered the party is no further along in the collection of his debt than when he commenced. He must bring his action on the bond. Greer v. Greer, 2 Ohio St. 574: State v. Cutting, 2 Ohio St. 1; Taylor v. Thorn, 29 Ohio St. 569.

      Andrews de Allison, also for defendants in error:
    The claim was barred by the statute of limitations. Rev. Stat. §§ 4980 ; 6047. An action once barred cannot be revived by. any action of an executor or administrator. S. & C. 587, §§ 108, 102, 103 ; Angel on Limitations, 288, § 267.
   McIlvaine, J.

The judgment of the district court is sought to be maintained on the ground that the court of common pleas erred in overruling the demurrer to the petition.

The only point made in argument by defendant in error on this demurrer, is that the petition alleges that the claim sued on was duly allowed by the successive representatives of the estate of Truex as a valid claim against that estate ; and therefore, it is claimed that no cause of action against the defendant wras stated.

In support of this claim, defendant relies on Greer v. Greer, 2 Ohio St. 575, and Taylor v. Thorn, 29 Ohio St. 569. True, there are some dictain those cases that would support the claim, especially in the latter case, where it is said that “ the right to maintain an action on claims against an estate presented to and allowed by the administrator is prohibited by law.” The point decided by the court was, that the statute of limitations does not run in favor of an estate against a claim duly allowed by the administrator, so that the question now under consideration was not necessarily involved in the decision of that case. The case of Greer v. Greer, was on the bond of an administrator,, and not against the estate, so that nothing in that case or in the opinion, concludes the case now before us.

If the defendant was exempt from being- sued on the claim stated in the petition the exemption must be found in some statutory provision ; and the only statute relied on is as follows:

Revised Stat. § 6108 (S. & C. 584, § 96): “ No executor or administrator shall be liable to the suit of a creditor of the deceased, until after the expiration of eighteen months from the date of his administration bond, or the further time allowed by the court for the collection of the assets of the estate; unless it be for the recovery of a demand that would not be effected by the insolvency of tlie estate ; or unless it be brought after the estate lias been represented insolvent, for the purpose of ascertaining a claim that is contested ; or unless the claim has been exhibited to the executor or the administrator, and has been disputed or rejected by him.”

This section, instead of supporting the claim made by demurrant, is, by implication, strongly against it. The petition avers that eighteen months from, the date of the administration bond and the further time allowed by the court for the collection of the assets of the estate had expired, and that the estate was solvent; thus showing that the plaintiff was entitled to payment, and that the period of defendant’s exemption from suit had elapsed.

The claim that the only remedy of a creditor .for the payment of an allowed debt is under section 6210 of Revised Statutes is fallacious. That section is as follows:

“After a creditor is entitled by law to the payment of his debt, from the executors or administrators, and the amount of the claim has either been admitted to be just or allowed by them, or has been ascertained by judgment or award against them, or Uy an order of distribution, the bond given by them for the discharge of their trust, may be put in suit by such creditor, if tlie executors or administrators shall neglect, upon demand made by such creditor, to pay such claims.”

The remedy on the bond is cumulative, not exclusive. Suppose the makers of the bond be insolvent, and the estate solvent, can there be any doubt that the creditor would be entitled to judgment, and execution against the assets of the estate ? Surely not. Section 6107 provides that all executions against executors or administrators for debts due from the deceased shall, except in cases otherwise provided for, run against the goods and estate of the deceased in their hands.

The demurrer to the petition was properly overruled.

The issues of fact made by and upon defenses one, two and three, were found by the jury in favor of plaintiff, and 'as to the matters submitted to the jury, the only error assigned, that need be mentioned, is, that the court ruled out the following testimony offered by defendant in support of defense number two: namely, that Sutherland before he allowed these claims against the estate, as administrator da bonis non, had been verbally notified by the widow of Truex not to allow them. No other testimony was offered tending to prove the collusion and fraud charged in the second defense, and taken alone, we think the evidence so rejected did not tend to prove the defense alleged. If the rejected testimony had been admitted and no other evidence in support of this defense had been offered, we think the court should have directed the jury, on this issue, to find for the plaintiff. Hence, its rejection was not prejudicial to the defendant.

Did the court of common pleas err in sustaining the demurrer to the 4th defense ? This defense alleges that more than fifteen years had elapsed between the maturity of the notes and the commencement of the action.

It was alleged in the petition that Sutherland as administrator da bonis non had allowed this claim as a valid claim against the estate on the 4th day of January, 1868, less than fifteen years from the maturity of the notes. This fact was not denied by the answer. By this allowance the statute ceased to run against the claim. Taylor v. Thorn, 29 Ohio St. 569. By failing to deny the fact of allowance as pleaded in the petition, it must be regarded, under the statute, as admitted, and being admitted, it was wholly immaterial that fifteen years had elapsed from the maturity of the note to the commencement of the action thereon. Upon such a record, we think, the question on the demurrer was the same as if the answer had admitted the allowance of the claim by Sutherland on the day named in the petition. Hence, there was no error in sustaining this demurrer.

The demurrer to the fifth defense raises this question, whether or not the statute requiring a creditor of an estate to bring an action on his claim within six months after its rejection by the administrator, applies to a case, where the claim has been duly allowed by an administrator, and was rejected by the successor of the administrator allowing it.

The allowance of a claim when exhibited or presented to an administrator for allowance is not conclusive against the estate as to its validity. It may afterwards be disputed and contested by the administrator. But we think, the statute limiting the right of action to six months after the claim is rejected does not apply to a case where the claim is allowed upon presentation, and afterwards disputed; but only to cases where it is disputed or rejected upon presentation for allowance. The statute is (Sec. 6097, Rev. Stats.): “ If a claim against the estate of a deceased person be exhibited to the executor or administrator, before the estate is represented insolvent, and be disputed or rejected by him, and the same shall not have been referred, the claimant shall, within six months after such dispute or rejection, if the debt ... be then due . . . commence suit for the recovery thereof or be forever barred.” It would seem clear, that such suit must be commenced within six months after the rejection, although an administrator cle bonis non may, during that period, have succeeded. If the estate be entitled to the advantage resulting from rejection of a claim in such case, why should it not be bound by an “allowance” made by a former administrator?

We think it is so bound, and therefore the rejection of the claim in this case by the defendant had no other effect- upon it, than would a subsequent notice by Sutherland, after he allowed the claim, of his intention to contest it.

An administrator cle bonis non takes the estate from his predecessor in the same condition he left it. All acts lawfully done in the discharge of his trust by the former administrator are binding on his successor. The law recognizes a privity of estate between them, and it follows, that the case, in this respect, stands exactly as if the same administrator who allowed the claim had afterwards repudiated it.

There was no error in sustaining the demurrer to this defense.

The only question which remains to be considered, as arising upon the demurrer to the sixth defense, as it appears to us, is that the plaintiffs claim was not allowed by Thomas as executor of Truex, within the period of four years after his giving bond as such executor.

During the whole of this period Thomas was executor of the creditor as well as of the debtor estate. In such double relation he could not deal or contract with himself, but whenever funds belonging to the debtor estate and applicable to the payment of the creditor estate came into his hands, he was bound to treat the same as assets of the creditor estate, to the extent of the indebtedness. If mistakes occur in making transfer of such accounts, they may be corrected on settlement of his final accounts with the probate court. No formal allowance ” of the claim was necessary; but if it were, the credits indorsed upon the notes during the double relation, sufficiently show that such allowance was made.

We find no error in the record of the court of common pleas, for which the judgment of that court should have been reversed.

Judgment of district court reversed, and that of the common fleas affirmed.


text:
    Watson v. State.
    1. An indictment,' under sec. 6900, Revised Statutes, which charges that defendant corruptly offered and promised to B. a member of the House of Representatives of the General Assembly of the state, with the intent to corruptly and feloniously influence his vote upon a certain bill then pending in such house, “a valuable thing, to wit: stock of the Cincinnati Union Railway Co., of the amount and value of $20,000, and a large amount of money, of great value,” is not bad for uncertainty. It is not necessary, in addition to such allegation, to recite the facts which give the thing offered a value, nor to charge that a definite sum of money was offered.
    2. A single count in such indictment, which charged that B. was a member of the house, and also a member of a standing committee of such house to which the bill was referred, and that the offer or promise was made to influence his vote therefor in the house, and his vote for a favorable report thereon in the committee, is not bad for duplicity. The charge thus made constitutes but one offense under the statute.
    3. To charge the jury, in a trial upon such indictment, that the thing offered or promised must have a value at the very time it is offered or promised, and while the bill is pending, is error, but not to the prejudice of the defendant. It is a crime, under section 6900, to offer or promise a thing valuable at that time, or which will be valuable when, according to the promise, it is to be given or delivered.
    4. Under the act of April 18, 1883, entitled “An act to amend sections 455, 6710, 6711 and 7356 of the Revised Statutes,” this court cannot examine the bill of exceptions, for the purpose of determining whether the verdict is against the weight of the evidence.
    Motion for leave to file a petition in error to the Court of Common Pleas of FranMin county.

      W. J. Gilmore and J. A. Miles, for plaintiff in error.
    TF. J. Clarke and JR. JB. Montgomery, prosecuting attorney, for the state:
    On the question as to whether the averment that “ a large amount of money of great value ” was offered is too indefinite, cited, Rev. Stats. §§ 6794, 7228; Commonwealth v. Chapman, 1 Va. Cases, 138; Bishop’s Stat. Or. §§ 898, 945, 475; 2 Archbold’s Cr. Pr. & Pl. 1287; Commonwealth v. Burk, 12 Allen, 182 ; Yarborough v. State, 41 Ala. 405 ; 1 Wharton’s Crim. Law, § 292; Moffatt v. State, 6 Eng. 169; Gibbons v. State, 33 Ill. 442; Parsons v. State, 2 Ind. 499; 3 Met. 478, and see Spencer v. State, 33 Ohio, 401; Spears v. State, 2 Ohio St. 583; Boose v. State, 10 Ohio St. 575.
   Doyle, J.

Watson was indicted under section 6900 of the Revised Statutes, for offering a bribe to a member of the House of Representatives, to influence his vote upon a bill then pending in said house. The indictment contains two counts. The first count charged in substance, that the defendant on the 23d.of March, 1883, during the pendency before said house of a bill “Providing for the extension of the Miami and Erie canal, and building and maintaining a railway through the city of Cincinnati,” known as House bill No. 209, to corruptly influence one William Bloch, a member, &c., to vote for said bill, did corruptly offer and promise to said Bloch, “ a valuable thing, to wit, stock of the Cincinnati Union Railway Company, of the amount and value of twenty thousand dollars ■and a large amount of money of great value.”

The second count charged that Bloch was also a member of the standing committee of the house on public works, to which committee the bill aforesaid was referred. And that for the purpose of influencing him as a member of the house to vote for the bill, and as member of the committee to vote for a favorable report on. tho bill, did corruptly offer and promise, &c., repeating the offer in the language already quoted from the first count.

At the January term, 1883, of the court of common pleas of Franklin county, the defendant was tried and convicted on both counts of the indictment. A motion for a new trial was made and overruled and the defendant sentenced to a term in the penitentiary. He thereupon filed in this court a motion for leave to file a petition in error, to procure a reversal of that judgment. During the progress of the case after the indictment, the defendant filed in the order named, a motion to quash, a demurrer to each count of the indictment, and a motion to require the state to elect, under the second count of the indictment, which offense it would proceed upon, assuming that two distinct offenses were therein charged, each of which was, at the proper time, overruled by the court, and exceptions taken by said defendant.

These several rulings and orders of the court are alleged to be error and will be considered together, as each of said motions and demurrers was intended to present the question as to the sufficiency of the indictment.

It is claimed that the second count of the indictment is bad for duplicity; that it chai-ges separate and distinct offenses. That attempting to bribe a member of a legislative committee as to his action as such, was an offense at common law, and that as the indictment charges that this bill No. 209, was, at the date alleged, in the committee, an offer to bribe him as such committeeman is a different offense from an offer to bribe him as a member of the house. Hence, it is urged, the two offences, both being indictable at common law, cannot be charged in one count.

Conceding that these acts constituted distinct offenses at common law, the legislature has the power to make them one offence by statute. As we have no common law crimes in Ohio, the inquiry is, are there two crimes, made such by statute, charged in this count of the indictment ?

The provision of the statute, § 6900, R. S. is as follows : Whoever corruptly gives, promises, or offers to any member or officer of the general assembly, or of either house thereof either before or after his election, qualification, or appointment any valuable thing ... to influence him with respect to his official duty, or to influence his action, vote, opinion, or judgment in any matter pending or that might legally come before him,” &c.

What is charged in this second count is that the offer was made to Bloch, a member of the house and also a member of the committee of such house, to induce him to vote for the bill and to vote for a favorable report in the committee. Within the meaning of this statute the member does not occupy the dual character claimed for him. What he does in committee he does as a representative, the committee being but a subdivision of the legislative body for certain purposes, among which is that of examining bills and reporting to the whole body upon their merits. To attempt by a bribe to influence his vote upon a pending bill, either in the committee of which he is a member,or in the house when the bill is put to a vote, is a crime under this statute. To allege either, without the other, would be good. To allege the bribe was offered to induce the member to do both is certainly good.

It is further urged that the indictment does not sufficiently charge that anything of value was offered, because it is not charged that the Cincinnati Union Railway Co. was, when the offer was made, legally incorporated or authorize^ to issue stock, nor any fact which imported present value to such stock ; nor, it is said, is it charged that any specific amount of money, having a value expressed by a sum certain, was offered ; the term a large amount of money of great value ” being too indefinite for good pleading. "Wo think the objection is not well taken. It is not necessary to allege or prove the quantity of value, where that is not an essential element of the crime. Under the statute it is not material whether the value of the thing offered is great or small, if it is in fact valuable. To offer one dollar, for the corrupt purpose of influencing the vote of a legislator, is as complete an offense as to offer one hundred dollars. Money necessarily imports value. The term “ anything of value ” includes money in this state, by express statutory provision. Rev. Stats. § 6794. Hence, the distinction does not exist here, which is found in some stales, between “a thing of value” and “money” in an indictment. Reading these two sections of the Revised Statutes together and testing thereby this part of the offer, the result is the same as if § 6900 read: “ Whoever corruptly offers any money.” The requirements of the statute, to constitute the crime, are fully met by allegation and proof that the defendant offered a large sum of money. A promise, or offer in just that language, without naming any definite sum, with the corrupt purpose of influencing the vote of the member, would be a crime under this statute, and the indictment need not charge more.

We will consider the offer of the stock when we come to treat of the charge of the court.

Upon tiie trial and before the close of the argument, the defendant asked the court to charge the jury as follows :

“ The jury, before they can convict the defendant, must find that about the 23d of March, 1882, the defendant, with intent to corruptly influence the vote, opinion, judgment and action of William Bloch as a member of the general assembly, did offer him stock of Cincinnati Union Railway Co., and you must further find that there was such stock in existence, and that it had some value; or if there was no such stock, or if there was such stock and it had no value, then in order to sustain the indictment and warrant a conviction of the defendant you must find that the defendant offered to William Bloch a specified or definite sum of money, and that such offers, or one of them, were made while House bill No. 209 was actually pending before the House of Representatives.”

This charge the court refused to give, but did charge the jury that “ the state, in order to convict, must show that there was a promise or offer made to said Bloch for the purpose of controlling or influencing his vote and legislative action upon this bill; and it must further show, if you find that anything was promised or offered, that the thing promised or offered was of some value. It does not matter how much or how little it may have-been, but it must be of some value at the time of the promise or offer.” And again. “ I will charge you that you must find that the thing offered had a value at the time it was so offered, and the bill pending.”

The request of the defendant contained three distinct propositions. Two of them, viz.: that the offer of money must be a specified and definite sum, and that the bill must be actually pending before the house, by which was meant (in view of the claim made thereon by defendant’s counsel on the trial) before the house, and not in the committee, we have already disposed of. As all of the propositions were contained in a single request, which in these respects was erroneous, it was properly refused. The third proposition in defendant’s request, viz.: that the stock or thing offered must have a value at the very time it was offered, was given by the court in much stronger language than that contained in the request. There was no error, therefore, in the charge to the prejudice of the defendant ; it was much more favorable to him than the law is. The evil of the charge is, that it so construes the statute as to leave unprovided for, and allow to go unpunished, the very worst forms of bribery.

It was proved on the trial that the organization of the Cincinnati Union Railway Co. had not been legally perfected as provided by section 3241 of the Revised Statutes, and hence its stock had not yet been legally issued. The effect of the charge given therefore, was practically to take this part of the case from the consideration of the jury. But the proposition to a legislator in a case of this kind, may be in effect, that if he will use his influence and vote, as a representative and committeeman, to obtain a grant of a valuable franchise from the state, he shall be paid therefor a part of the gi;ant, or that which represents a part of the grant, to wit: stock in the company incorporated to receive the grant. A very dangerous species of bribery, although such stock may not at the time of the promise be in existence.

The offer in this case, if it was made, to give stock in this company to the amount and of the value of $20,000, involved a promise that at the time of delivery it should be legal stock and valuable. To offer or promise to give a thing, and in connection therewith, to promise to do some act before the time the thing is to be given, which will give it value, or to offer a thing in the future which, at the time agreed upon for delivery, will have a value, is to offer a valuable thing.

Suppose there was nothing illegal or improper in the contract proposed in this case, but it could be enforced as any other valid contract in an action by Bloch against defendant for the contract price for his services,alleging that it had been entered into and fully performed by him. Would it be any defense to say, “ True, I promised you stock in the railway company, not only to the amount but of the value of $20,000; but the company was not then legally organized, and its stock then had no value ; hence I did not agree to pay you anything of value ?” Would he not rather be held to have agreed that when the time of performance on his part arrived, there should be such stock legally issued, and that it would be of the value named, and upon his failure to fulfill such agreement be liable to a judgment ?

This statute, like other criminal statutes, must be strictly construed, so that no act shall be held under it to be a crime not within its letter; but it must also be reasonably construed, and the words used in it be given their fair import and meaning. The construction given to it by the court in this charge would permit a man to promise a legislator that after his vote was recorded a particular way upon a pending bill, the promisor would execute to him a negotiable promissory note, or procure A. or B. to execute and deliver such note, or subscribe for the capital stock of a corporation, which the promoters of the project were about to organize, and deliver him such stock or give him a portion or percentage of whatever was realized out of some venture, to be aided by the legislation sought thereby to be corruptly influenced, and escape liability. The thing offered must be a thing of value ; but of value when ? It may be a thing of great value at the time it is to be delivered, and have no existence at the time of the promise. It will have its evil influence and be as pernicious as any form of bribery.

When this statute therefore prohibits giving, offering or promising anything of value, it must be held to mean of value when it is given, offered, or promised, or when, by the terms of the offer or promise, it is to be given.

It is claimed the verdict is against the weight of testimony. Wo cannot examine the record for the purpose of determining that question. Section 7356, R. S., as amended April 18, 1883, by the act entitled “An act to .amend sections 455, 6710, 6711, and 7356 of the Revised Statutes,” prohibits such examination. While this motion was filed before the passage of that act, if we grant it, and the case takes its place on the docket, it will be governed by the provisions of the section as thus amended.

Motion overruled.