author: Dickman, J.

text:
    Card Fabrique Company v. Stanage.

      Remedy against the separate estate of married woman—Service by publication.

    1. Under sections 4996 and 5319, of the Revised Statutes, (Act of March 20, 1884, 81 Ohio Raws, 65), the remedy against the separate estate of a married woman, is the same as if she were unmarried.
    '2. Where a married woman, after the passage of the act of March 20, 1884, entered into a written contract with a manufacturing company setting forth that, owning in her own right certain real and personal property, and desiring to aid her husband, she thereby agreed and became surety for him in the sum of. fifteen thousand dollars, on account of any indebtedness, to that amount, he might incur to the company as its agent, or as a purchaser of its goods—the company accepting her as surety, upon the faith and credit of her separate estate; Held: That no specific lien having been created by the written contract upon the wife’s separate estate, the remedy of the company was not by suit in equity to charge her separate estate, but by action at law against her, as against an unmarried woman.
    3. Although the wife was a non-resident of this state at the time of commencing the original action, the written contract did not afford adequate ground for service by publication, under Section 5048, of the Revised Statutes.
    (Decided June 13, 1893.)

      Error to the Superior Court of Cincinnati.
    In the year 1886, the plaintiff in error, The Card Fabrique Company, was a firm located at Middletown, Ohio, engaged in the manufacture and sale of playing cards; and the defendants in error, John E. Stanage and Emma Stanage, who are husband and wife, were then, and at the time of commencing the original action, residents of the state of Missouri.
    The original petition was filed by the plaintiff in error, in November 1887, in the Superior Court of Cincinnati, making John E- Stanage, Emma Stanage, and Margaretta M. Frank and Augustus F. Frank trustees under the will of Agustus W. Frank, defendants. Said petition is as follows:
    “The plaintiff alleges that it is a firm formed for the purpose of and doing business in and under the laws of Ohio. On April 11, 1885, it entered into a contract with said John E- Stanage, by which it sold to said John E- Stan-age, 900 gross of playing cards for $8,916.75, and by which it appointed said John E- Stanage its agent to sell its goods, consisting of cards and other commodities. On March 9, 1886, a supplemental agreement was made between the plaintiff and said John E, Stanage, by which it sold to said John EStanage an additional amount of 1,000 gross of cards for $15,541.33, and by which it continued the appointment of John E- Stanage its agent to sell its said goods. The debt from said John E. Stanage to the plaintiff for said goods has long since fallen due. Pursuant to said agency plaintiff furished to said John E- Stanage goods from time to time tobe sold by him for plaintiff, amounting to $-. Said contracts of agency gave to said John E- Stanage the right to sell the' goods of plaintiff in certain specified territory of the United States, and to the extent of such sales said John E- Stanage became debtor to plaintiff therefor; and he was to be allowed a commission on such sales. That after deducting such commissions and such expenses as he was entitled to, he became indebted to plaintiff for same in the sum of $-. Said John E- Stanage has paid to the plaintiff on said goods sold directly to him, and on such goods as he sold under said agency, the sum of $•-----, leaving •a balance due and owing by him to plaintiff of the sum of $11,458.83, and interest thereon.
    “Plaintiff alleges that to induce the making of said second ■or supplemental agreement, and-to induce the continuance ■of said agency, and the furnishing of said goods by plaintiff to said John E- Stanage, and for other valuable considerations, and as part of said supplemental agreement, said Emma Stanage, the wife of said John E. Stanage, represented to plaintiff that she was the owner of certain real ■estate and a life estate in her share of the estate of said Augustus W. Frank, sufficient to secure plaintiff in the amount of said indebtedness. And to secure said plaintiff the amount of said indebtedness of said John E- Stanage, she did on March 16, 1886, execute to plaintiff an agreement in writing, a copy of which is hereto attached, by which she agreed and promised and became surety for said John E- Stanage to plaintiff for said indebtedness, and agreed that her life estate, and said estate of Augustus W. Frank should be liable therefor. Plaintiff says at the time she made said representations and entered into .said agreement, said Emma Stanage was the owner and seized in her ■own right of a life estate in said estate, consisting of personalty and realty in Cincinnati, Hamilton county, Ohio, which she acquired by the will of said Augustus W. Frank, ■on its probate June 21, 1867, in the probate court of Hamilton county, Ohio, in which county said testator was a resident at the time of his death, and her said contract was made and entered into, and bears date at Middletown, Ohio. Plaintiff is unable to state the amount of the interest held by her for life in said estate, but it alleges it to be more than sufficient to pay said debt.
    “Said Margaretta M. FrankandAugustus F. Frank are now the duty appointed and qualified trustees of said estate of Augustus W. Frank, and hold said life estate in trust for said Emma Stanage.
    “Plaintiff has demanded of said John E. Stanage-the payment of said indebtedness, whicb he refused to pay.

      “Wherefore the plaintiff prays that the court may find and adjudge the amount due to it from said John E- Stanage, and may find the amount of the life interest of said Emma Stanage in said estate of Augustus W. Frank, and may order the same to be sold for the payment of said debt and interest, and the costs of this action, and for other proper relief.”
    Interrogatories, annexed to the petition, were propounded to Margarette W. Frank and Augustus F. Frank, requesting them to state.
    1. What share or proportion Emma Stanage had in the estate of Augustus W. Frank.
    2. Of what property and assets the said estate consisted; and,
    3. To what date had the interest of Emma Stanage com-, ing to her by virtue of said life estate, been paid.
    The following is a copy of the agreement executed to the plaintiff by Emma Stanage, to which reference is made in the petition:
    “This agreement, entered into between Emma Stanage of the first part, and The Card Fabrique Company of the second part, witnesseth:
    “Whereas, the party of the second part has appointed John E. Stanage, husband of the party of the first part, their agent, for the sale of articles of merchandise: and also sell to said John E- Stanage said articles of merchandise whereby large sums of money and property will come into his possession and control as such agent; and the said John E- Stanage has and will become indebted to them in large sums by reason of sales made by him, which may or will be evidenced by notes or acceptances, given to said party of the second part for the same, or portions of the same, and whereas said party of the first part owning in her own name certain real and personal property and desiring to aid her said husband, John E- Stanage, by these presents agrees in consideration of one dollar paid to her by said party of the second part, and does become surety for said John EStanage in the sum of fifteen thousand dollars for the obligations aforesaid and the faithful performance on the part of said John R. Stanage of his duties as such agent, and the accounting for and payment of all moneys, and surrendering of all property, which may come into his possession or control as such agent to said party of the second part, when demanded, and the payment of indebtedness when due and required. It is understood and agreed that in no event shall said Emma E. Stanage be liable as surety aforesaid in a sum exceeding fifteen thousand dollars, and the said party of the second part accepts. said Emma F. Stanage as surety aforesaid, upon the faith and credit of her separate estate.
    “In witness whereof we have hereto set our hands and seals at Middletown, Ohio, on this 16th day of March, A. D. 1886.
    “Emma F. Stanage,
    The Card Fabrique Co.,

      By H. Anbly, Secretary

    “FI. R. Hoffman, (Witness.)
    Minnie Barteel, (Witness.)”
    The defendants, John R. Stanage, and Emma F. Stanage, being non-residents of Ohio, and residents of Missouri, the plaintiff filed an affidavit in the usual form, to obtain service9 by publication. Emma F. Stanage acknowledged service upon herself personally, of a copy of the summons and petition at her residence in Missouri, and without submitting herself to the jurisdiction, moved to set aside, such service. The record shows that this motion was heard and granted, the alleged service, by stipulation of counsel for plaintiff and defendant, to have the same force and effect (and no more) as if service had been made by publication. Subsequently, on a motion for judgment filed by the plaintiff, the petition was dismissed. The judgment of dismissal was affirmed by the Superior Court in general term, and error is prosecuted to this court, on the ground that the court erred in setting aside said service, overruling the motion for judgment and in dismissing the petition.

      Jordan & Jordans, for plaintiff in error.
    I. Section 5048, Revised Statutes, clause 4, provides that in such cases as made in the petition, service may be made by publication.
    II. By the common law a married woman may pledge her separate estate for the payment of her obligations, and by the statutes of 1861 and 1866, all her property subsequently to be acquired becomes her separate property. Until the act of March 19, 1887, section' 3112, there was no statute in Ohio making a married woman liable at law on any contract which was not for the benefit of her separate estate. Section 4996 was the only section under which any such claim was ever made. The section in force when this contract was made was passed March 20, 1884. But even if we had the right to sue at law, that did not deprive us oí our right to sue in equity to enforce the pledge.
    The authorities in Ohio, touching the right to sue in equity when the separate property is pledged, and where the right to sue at law is denied, are as follows: Phillips v. Graves, 20 Ohio St., 371; Rice v. Railroad 32 Ohio St., 380; Levi v. Earl, 30 Ohio St., 147; Avery v. VanSickel, 35 Ohio St., 270; Williams v. Urmston, 35 Ohio St., 296; Patrick v. Littell, 36 Ohio St., 79; Henisheimer v. Florence, 39 Ohio St., 516; Elliotte v. Lawhead, 43 Ohio St., 171.
    No personal judgment can be entered. Swasey v. Antram, 24 Ohio St., 87; Hoover v. Gibson, 24 Ohio St., 389; Jenz v. Gugel, 26 Ohio St., 527; Allisons. Porter 29 Ohio St., 136; Rice v. Railroad, 32 Ohio St., 380; Patrick v. Littell, 36 Ohio St., 79; McClelland v. Bishop, 42 Ohio St., 113; Payne v. Thompson, 44 Ohio St., 192.
    We claim that the acts prior to 1884 and the act of 1884 are the same in legal effect. Section 28 of the Code, passed March 14,1853, which is now section 4995 of the Revised Statutes. This section 28 was repealed by the act of April 18,1870. Ohio E..67, p. 116. This section 28, so amended in April 18, 1870, was repealed March 30, 1874, vol. 71, p. 48. This section 28, so amended March 30, 1874, was repealed May 14, 1878, vol. 75, p. 801, and was re-enacted on May 14, 1878, and divided into two sections. Vol. 75, pages 666, 667. An act was passed January 21, 1879, Ohio R. 76, p. 3, which again repeals section 28, in the act of 1874. Section 4996, of the Revised Statutes, passed June 20, 1879. This section 4996, is re-enacted and amended March 20, 1884, Ohio R., vol. 81, p. 65. Section 5319, of the Revised Statutes, passed June 20, 1870. This section 5319 is re-enacted and amended March 20, 1884, Ohio R. vol. 81, p. 65.

      Roelker & Jelke, for defendant in error.
    Counsel for plaintiff in error claim that until the act of March 19, 1887, section 3112, there was no statute in Ohio making a married woman liable at law on any contract which was not for the benefit .of her separate estate, and that section 4996 was the only section under which any such claim was ever made. The section in force when this contract was made was passed March 20,1884. Under paragraph second of their brief, counsel quote several Ohio decisions, ending with Payne v. Thompson, 44 Ohio St., 192, to show that no personal judgment can be entered against a married woman. It does not seem necessary to analyze the bearing of these decisions on the case at bar, in view of the recent decisions of this court. Hill v. Myers et al., 46 Ohio St., 183; Maxon v. Scott, 55 N. Y. 247; Todd v. Lee, 16 Wis., 480.
    If no personal judgment could have been awarded against her and enforced by execution, it might have been proper to invoke the remedy in equity of spcifically subjecting her separate property. B ut under the statutory provisions herein considered, authorizing a personal judgment against a married woman, followed by execution where the action concerns her separate estate, an effective remedy is afforded, and a creditor should not, by adopting the form of chancery procedure where he has no specific lien, be. permitted to hold her separate estate to any greater extent or by a firmer grasp than he could, under like conditions, hold the property of her husband or that of an unmarried woman.

      ity virtue of the amendments of section 28 of the Code of Civil Procedure, which are substantially embodied in sections 4996 and 5319, of the Revised Statutes, a radical change has been effected in the remedy against married women. Though the object of this legislation was not to enlarge or vary the liabilities of a married woman, it fundamentally changed the form of the remedy. Jenz v. Gugel, 26 Ohio St. 527; Allison v. Porter, 29 Ohio St., 136. The disibilities of coverture are so far removed, that where the action concerns her separate property, a personal judgment may be rendered against her in all cases where such judgment would be proper were she a feme sole. Such judgment may be enforced in all respects as if she were an unmarried woman. Execution may be issued against the separate property and estate to the same extent as against the property of her husband, were the judgment rendered against him; and the same rule will apply to her for the purpose of setting off a homestead in her property, about'to be levied upon, that applies to her husband. Society of Friends v. Haines, 47 Ohio St., 423.
    We submit that, in view of these decisions, rendered on causes of. action arising before 1884, there can be no doubt that a personal judgment could be entered against a married woman on a contract entered into by her with reference to her Separate estate.
    But, in 1884, the statutes, as to the power of married women to make contracts, underwent further changes. The contract on which the claim of defendant’s liability herein is based was made in 1886. At that time the law of Ohio was contained in sections 3109, 4996 and 5319, Revised Statutes.
    If then as to this cause of action the defendant in error was like a feme sole, what ground was there for service by publication under clause four of section 5048, of the Revised Statutes.
    The contract sued on in the case at bar, contains not only no pledge of any property, but not even a reference to any property beyond the mere averment that the defendant in error is possessed of an estate. In order therefore to work out this claim to the right of service by publication, plaintiff in error is compelled first to deny its right to sue at law, in order to maintain its action for equitable relief, setting up there an implied pledge which equity only gave on the ground that at law the obligation was wholly void. Even if plaintiff had a right to sue in equity, and had a specific pledge of defendant’s property, it has failed to set forth any description of the property sought to be affected, as required by section 5050 of the Revised Statutes. Lawler v. Whetts, 1 Handy, 40.
   Dickman, J.

It is contended in behalf of the plaintiff, that under the statutes in force in the year 1886, an action was maintainable in equity to charge the separate estate of Mrs. Stanage—a non-resident of this state—upon her alleged liability under the written agreement entered into between herself and the plaintiff; and that the court acquired jurisdiction through constructive service by publication.

Manifestly, from the terms of the agreement, the "wife, in becoming surety for her husband, intended to charge her separate real and personal property, in the amount specified, for the payment of any future indebtedness he might incur to the company, as a purchaser of or as an agent for the sale of its goods and merchandise. Whether there is, in fact, any indebtedness of the husband for which the wife’s estate should be liable, is not an issue that has been reached, the only inquiry having been as to a remedy by equitable procedure, and the sufficiency of service by publication.

If no personal judgment could be rendered against the wife, the obvious remedy of the plaintiff would be, an appeal to the court, in the exercise of its equity powers, to lay hold of the wife’s separate property, and apply it in payment of her equitable obligations. Although no specific lien was created on her" separate property by the written contract; yet, there would be an equitable charge upon her estate, and a liability of it to be taken in payment by decree, as a man’s property may be taken on execution.

But by statutes—in force when the written agreement in question was entered into, and when the original action was commenced—a married woman may now sue and be sued at law as if she were an unmarried woman; and any judgment rendered against her, may be enforced as if she were unmarried, and her property may be taken on execution to satisfy such judgment, to the same extent that the property of her husband might be taken in satisfaction of a judgment against him.

By section 3109, of the Revised Statutes (act of April 14, 1884, 81 Ohio Raws, 209): “The separate property of the wife shall be under her sole control, and shall not be taken by any process of law for the debts of her husband, or be in any manner conveyed or incumbered by him, and she may, in her own name, during coverture, contract to the same extent and in the same manner as if she were unmarried.”

By section 4996 (act of March 20, 1884, 81 Ohio Raws, 65), “A married woman shall sue and be sued as if she were unmarried, and her husband shall be joined with her only when the cause of aclion is in favor of or against both her and her husband.”

And by section' 5319 (act of March 20, 1884, 81 Ohio Raws, 65), “When a married woman sues or is sued, like proceedings shall be had and judgment rendered and enforced as if she were unmarried, and-her property and estate shall be liable for the judgment against her, but she shall be entitled to the benefits of all exemptions to heads of families.”

The established rule in equity is, that a feme covert, acting with respect to her separate property, is competent to act in all respects, as if she were a feme sole, though, she is not so far a feme sole that a personal decree can be had against her. Peacock v. Monk, 2 Ves. Sen. 190; Hulme v. Tenant, 1 Br. C. C. 19; Clan. H. & W„ 282, 331, 2 Am. ed., 1837. But, by the statutes of this state, a new policy has been adopted and a radical change effected; and a married woman has been placed upon the same footing with her husband, in respect to the judgments or decrees that may be rendered against her, and as to the remedial rights of creditors against her separate estate.

It is urged, however, on the part of the plaintiff, that the legislature designed to give a twofold remedy, or to enlarge the remedy for and against married women, by authorizing an action at law—thus opening all forums as to her, and not only granting the creditor the right to sue at law, but leaving to him also his remedy by suit in equity, where under the adjudications, that right exists. But, the evident intention of the legislature was not to enlarge or vary the liabilities of the wife, but merely to change the form of remedy. If the husband were sued as surety for another, upon an agreement in writing substantially the same as that to which Mrs. Stanage became a party, it would not be claimed, that by the terms of the agreement, his estate might be subjected in equity by a proceeding in rein; and the remedy would be restricted to a personal judgment against him at law, to be followed by execution. Nor is it to be held, that under the statutory provisions relieving the wife from the trammels of coverture, and placing her as a feme sole on the same plane with her husband in prosecuting and defending her property rights in the courts she was to be burdened with increased remedies and liabilities, by not only authorizing against her, as against her husband, a personal judgment at law, but also subjecting her to the alternative remedy of having her separate estate, at the election of the creditor, charged in equity, though not encumbered by any specific lien.

Did the court acquire jurisdiction through service by publication? By section 5048, of the Revised Statutes, regulating constructive service, it is provided, that service may be had by publication:

“ 3. In actions in which it is sought by a provisional remedy to take, or appropriate in any way, the property of the defendant, when the defendant is a foreign corporation, or a non-resident of this state, or the defendants’ place oí residence is unknown.”

“4. In actions which relate to, or the subject of which is,real or personal property in this state, when a defendant has or claims a lien thereon, or an actual or contingent interest therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is a non-resident of this state, or a foreign corporation, or his place of residence can not be ascertained.”

The plaintiff did not see fit to resort to the provisional remedy of attachment, with or without proceedings in garnishment. His service on the defendant, by publication, did not, therefore, avail him under clause three of the above named section of the statutes. And as to clause four of the section, if in the original action, Mrs. Stanage was to be regarded in the light of a feme sole, against whom it was competent to render a personal judgment at law, the written contract into which she had entered might furnish ground upon which to base an action at law, for the recovery of money only, with personal judgment against her, to be enforced as if she were unmarried. But, we find no provision in the written contract, that would entitle the plaintiff to maintain an action—within the meaning of clause four—of which .the subject might be real or personal property, and in which the relief demanded might consist in excluding the defendant from her interest in such property.

Judgment affirmed.


source: Caselaw Access Project

author: Bradbury, C. J.

license: Public Domain

text:
    Blackburn v. The State.

      Habitual Criminals— Who are—How indicted, convicted and punished—Constitutional law.

    1. The second section of the statute, passed May 4, 1885 (82 Ohio Taws, 237), known as the habitual criminal act, is sufficiently definite to authorize the indictment of a person charged, according to its provisions, with the commission of a third felony, his trial and conviction therefor, and his sentence to imprisonment in the penitentiary of the state during his natural life.

      2. To authorize a sentence of imprisonment for life under that statute, the indictment should allege that the defendant had been previously twice convicted, sentenced and imprisoned, in some penal institution for felonies, describing each separately. In such case the grand jury, at the time it finds an indictment for the third felony, is authorized, if the evidence warrants'.it, to include in the indictment the facts that the accused had been so convicted, sentenced and' imprisoned; and if the trial jury, in their verdict, find these facts to be true, and also convict him of the third felony, the court, after passing sentence of imprisonment for a specific term, as prescribed by the statute, should proceed to sentence him to imprisonment for his natural life.
    3. The statute does not create a new offense, but attaches an additional penalty to the commission of any felony,- where .the perpetrator thereof has been twice previously convicted, sentenced and imprisoned on account of other felonies committed by him.
    4. The statute, in its operation, does not conflict with section 10 of article 1 of the constitution of the United States, prohibiting “ ex post facto ” laws, nor with section 28 of article 2 of constitution of this state, prohibiting “retroactive” laws, although one, or both, of the previous felonies, charged against him, was committed, and the imprisonment on account thereof inflicted, before the statute in question was enacted.
    (Decided June 13, 1893.)
    Motion for leave to file petition in error to the Court of Common Pleas of Montgomery county.
    At the May term, A. D. 1890, of the Court of Common Pleas of Montgomery county, the following indictment was found by the grand jury against the plaintiff in error: “State of Ohio, Montgomery county: The court of common pleas, May term, in the year eighteen hundred and ninety. Montgomery county, ss. :
    “ The grand jurors of the county of Montgomery, in the name and by authority of the state of Ohio, on their oaths do present and find that David Blackburn, about the hour of twelve o’clock in the night season of the fourth day of April, in the year one thousand eight hundred and ninety, in the county of Montgomery, aforesaid, into a certain stable of Amos B. Miller and Eva W. Miller there situate and being, willfully, maliciously, forcibly and burglariously did break and enter, with intent thereby then and there the personal goods, chattels, property and money of said Amos B. Miller and Eva W. Miller in said stable then and there being feloniously, to steal, take, and carry away; and thirty seven chickens, each of the value of forty cents, and of the aggregate value of fourteen dollars and eighty cents of the personal property of said Amos B. Miller, then and there being found, then and there unlawfully and burglariously did steal, take and carry away.
    “And the grand jurors aforesaid, on their oaths aforesaid, do further present that said David* Blackburn heretofore, to-wit: At the June term, A. D. 1881, of the common pleas court of Miami county, Ohio, was duly convicted of an assault with intent to rob, and was by said court sentenced to a penal institution for felony, to-wit: The Ohio Penitentiary for the term and period of five j^ears, and that said Blackburn was soon thereafter committed to said penitentiary by the sheriff of said county, and was imprisoned in a penal institution for felony, to-wit: The Ohio Penitentiary for the period of five years, or until he was discharged by due course of law. And further that said David Blackburn, heretofore, to-wit: At the October term, 1886, of the court of common pleas of Montgomery county, Ohio was duly convicted of the crime of unlawfully receiving a stolen mare, knowing the same to have been stolen and with intent to defraud, and was by said court sentenced to a penal institution for felony, to-wit: The Ohio Penitentiary for the term and period of one year, and that said Blackburn was soon thereafter committed to said penitentiary by the sheriff of said county of Montgomery, and was imprisoned in a penal institution, to-wit: The Ohio Penitentiary for said period of one year, or until he was discharged by due course of law, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the.state of Ohio.”
    There was another count in the indictment, but not materially differing from the one recited.
    The plaintiff in error was tried'at the term in which the indictment was found, and the following verdict rendered against him: “ We, the jury, upon the issues joined in this case, do find the defendant, David Blackburn, guilty of burglary and larceny, as he stands charged in the first count of the indictment, and we find the value of the goods so stolen to be $14.80. And do further find the said defendant, David Blackburn, guilty of being an habitual criminal as he stands charged in the indictment.”
    The court, after adjudging him to imprisonment at hard labor for two years in the penitentiary of this state, proceeded as follows: “ And the said defendant, David Blackburn, having been found guilty of being an habitual criminal as set out in the indictment filed against him in this case, and being in .the custody of the court as above set forth, and being inquired if he had any thing to say why judgment should not be pronounced- against him on said charge, and having nothing but what had already been said, it is further ordered by the court that on the expiration of the term for which he has been sentenced he shall not be discharged from imprisonment in the penitentiary; but shall be detained therein for and during his natural life, as provided by section 2 of an act passed May 4, 1885, and found in vol. 83, Ohio Taws, page 237.”
    The two years for which he was sentenced having expired, and the board of managers and warden of the penitentiary still detaining him, under the life sentence, as an habitual criminal, he has presented to this court a petition by which he seeks to obtain a reversal of the judgment confining him for life as an habitual criminal, and asked leave to file the same.

      John J. Chester and N. B. Collins, for the motion.
    1. The grand jury can inquire of and present only ofienses committed within the limits of their own county. Revised Statutes, section 7194.
    2. There is no sufficient indictment here to support that part of the verdict referring to the habitual criminal. Article 1, section 10, constitution of Ohio; Revised Statutes, sections, 7194, 7388-10.
    3. There is no verdict here sufficient to support the sentence, as to being detained in the penitentiary during life. Revised Statutes, sections 6799, 6885.

      4. There is no sentence here except for the two years imprisonment for the burglary and larcency. Revised Statutes, section 6799; Larney v. Cleveland, 34 Ohio St., 599, and cases cited.
    5. The court had no power to sentence the plaintiff to be imprisoned or detained after the expiration of the two years, to-wit, after July 1st, 1892. Revised Statutes, section 6835, references, supra.
    6. This -statute is in violation of article 1, section 10 of the constitution of Ohio. Williams v. State, 12 Ohio St., 622; Page v. State, 3 Ohio St., 229; Morgan v. State, 13 Ind., 215; Cooley Const. Lim. pp. 266, 267, 283; Cummings v. Missouri, 4 Wall., 277; Ex parte Garland, 4 Wall., 333; 3 Story Const., 212; 3 Dali., 386; 6 Cranch, 87.
    7. It is also in violation of article 1, section 10 of the United States constitution. See references, supra.
    8. It is in violation of article 2, section 28, of the constitution of Ohio. Riardon v. Holden, 15 Ohio St., 207, 210.
    10. A sentence to begin after other sentences have expired, is void for uncertainty and indefiniteness. 34 Ohio St., 599, and cases there cited.

      John K. Richards, contra.

    The constitutionality of this act is impugned on the ground, first, that it puts the accused twice in jeopardy for the same offense, and, second, that it is an ex post facto, or retroactive law, providing a further or additional punishment for a crime committed before the act was passed.
    These objections have been in the past urged not only against laws similar to this providing for the detention of habitual criminials, but also against laws prescribing a greater penalty for the second offense. Obviously all such laws stand on the same footing.
    While the constitutionality of the habitual criminal act has never been directly passed upon by this court, it has been indirectly sustained in the Patterson case and in the Hiser case. Several common pleas courts have upheld the act, the court of Miami county in the case of Martin v.
      The State, and the Franklin common pleas in the Hanley case, Judge Pugh presiding. In the matter of the petition of Edward Kline, the circuit court of Franklin county found in favor of the constitutionality of this act; the decision, is found in 6 Ohio Circuit Court Reports, page 215.
    In view of the fact that Blackburn had been convicted and imprisoned for two of the felonies charged in the indictment, prior to the passage of the habitual criminal act, it is insisted that as to him and as to the crime he had committed before the habitual criminal act was passed, the law is both retroactive and ex post facto, providing a new and additional punishment for a crime already committed, and that there fore he is twice put in jeopardy for the same offense.
    The reason of the constitutional provision against ex post facto laws, is the just and apparent one, that a man should not be punished for doing a thing which he did not know at the time he did it was against the law; and further that he ought not to suffer for doing an act a greater penalty than he knew or in law was presumed to know the doing of the act would make him liable to suffer.
    The answer to the claim of the other side, is that this law does not provide any additional punishment for the offense committed before its passage and for which the accused has already suffered; but it provides a more severe punishment for the third offense. The prior convictions are considered by the court touching the situation or character of the criminal, at the time he commits the third offense, and the degreee of punishment required in the’ interests of society.
    The validity of acts similar to this have frequently been before courts of last resort in other states, and universally been sustained. Ross case, 2 Pick., 165; Plumby v. Commonwealth, 2 Metc., 413; Commonwealth v. Marchand, 29 N. E. Rep., 578; Commonwealth v. Graves, 29 N. E. Rep., 579; Ram v. Commonwealth, 9 Grattan, 738; Ex parte Gutierrez, 45 Cal., 430; People v. Stanley, 47 Cal., 113 ; Ingalls v. State, 46 Wis., 647; Kelley v. People, 115 Ill., 584; Louisiana v. Hudson, 32 La. An,. 1052.,
   Bradbury, C. J.

The plaintiff in error challenges the power of the grand jury to return an indictment against him for being an habitual criminal; denies that the indictment states facts sufficient to constitute him an habitual criminal; denies the authority of the petit jury to find in their verdict that he is an habitual criminal, and the power of the court to sentence him to imprisonment for life as such. He bases his contention, first, upon the language of the habitual criminal statute, which he claims is too vague and uncertain to express any definite legislative intention; and, second, that if it can be construed so as to express a clear legislative intent to authorize such proceedings as were had in the court of common pleas in this case, then the act conflicts with both the state and national constitutions,. and is therefore void. So much of the statute as becomes material to consider, reads as follows:

Section 2, vol. 82, Ohio flaws, page237: “Everyperson who, after having been twice convicted, sentenced and imprisoned in some penal institution for felony, whether eommited heretofore or hereafter, and whether committed in this state or elsewhere within the limits of the United States of America, shall be convicted, sentenced and imprisoned in the Ohio penitentiary for felony hereafter committed, shall be deemed and taken to be an habitual criminal, and on the expiration of the term for which he shall be so sentenced, he shall not be discharged from imprisonment in the penitentiary, but shall be detained therein for and during his natural life, unless pardoned by the governor, and the liability to be so detained shall be and constitute a part of every sentence to imprisonment in the penitentiary; provided, however, that after the expiration of the term for which he was so sentenced, he may, in the discretion of the board of managers, be allowed to go upon parol.”* * *

The foregoing language of the statute has been made the subject of a severe analysis and criticism by counsel for the plaintiff in error. The circumstances, that the statute is supplemental to the provisions theretofore enacted for the management of prisoners confined in the penitentiary, instead of being, in terms, an increment to that title of the Revised Statutes which relates to crimes and their punishment, and to criminal procedure, is also adverted to as tending to render the legislative purpose still more obscure. The language of the statute is not as simple and precise as could be wished, but that its meaning is at all obscured by the circumstances that it is made a supplement to the statute which regulates the management of _ convicts in the penitentiary, cannot be maintained. No doubt, the subject of legislation should be kept steadily in view as an important factor in correctly construing the legislative language, in all'cases; and that subject may be made more apparent in most; if not in all instances, of construing a supplemental statute, by recurring to the original statute; for presumptively the legislature in enacting the supplemental act had in view some purpose, cognate, at least, to that which was the subject of the original statute.

The fact that the statute*under consideration was enacted as a supplement to the act “ relating to the imprisonment of convicts” (82 Ohio Law, 237), instead of being made supplementary to that title of the Revised Statutes which creates- and defines offenses, is therefore a significant circumstance, tending to show that the legislature was not contemplating the creation of a new offense. And, when we examine the language employed, there is an entire absence of any phraseology defining or creating any offense whatever. We therefore conclude that there was no purpose to create one. If, however, there was a purpose to create a class of convicts whose incorrigibility had been established by a series of convictions for felonies, it could not have been placed in any more appropriate connection than that in which it is found. But, in whatever connection, or in whatever terms the legislature may choose to express its will, it is the duty of the court to ascertain and declare that will, if it can be gathered from the language employed; and the connection in which the legislatnre may place the statute is a circumstance that can only become important when the language is ambiguous. To whatever criticism the language of the section under consideration is subjected, we think it clearly evinces an intention that upon every third conviction for a felony the convict shall be sentenced to a specific term of years in the penitentiary, during which the power of parole shall be suspended, and that on the expiration of this specific term he shall remain in the penitentiary until discharged by death, parole or pardon. Two additional consequences are thus attached to the third conviction ; the suspension of the power of parol for a specific term to be fixed by the court, and imprisonment for life thereafter, thereby securing society from the depredations of a dangerous criminal during a specific term, unless he should be pardoned by the governor, and thereafter for life if neither paroled nor pardoned.

Plaintiff in error also contends that if the statute under consideration should be construed so as to subject one guilty of a third offense to life imprisonment, yet under its provisions he would not become an habitual criminal until after his conviction, sentence and imprisonment for the. third felony; that until then the grand jury could not indict him as such, the jury find him guilty thereof, nor the court sentence him to imprisonment for life. On this part of the subject the intention of the legislature is more awkwardly expressed than elsewhere, but when the entire act is considered, it is quite clear that the liability to imprisonment during life is made by the statute an inseparable incident of every third conviction for a felony, the statute in express terms declaring that the liability to be so detained, shall be and constitute a part of every sentence to imprisonment in the penitentiary. The language of the statute is “every sentence; ” but that should be taken to mean every sentence for a felony falling under this statute—that is, a third felony—for it is only on account of a third felony that the convict is made liable to a life sentence. The statute in question did not change the established course of procedure; it attached certain consequences to a third conviction, and whatever averment, proof and verdict is necessary to establish this third conviction, must be had under the existing criminal procedure. This court held in the unreported case of Ex parte Hiser, that the indictment under this statute should set forth the two prior convictions, and the sentence and commitment of the prisoner to some penal institution on account thereof. The indictment against the plaintiff in error set forth those facts with sufficient particularity to apprise him of the evidence to be adduced to establish their existence, and to enable him to defend against them. The proof should cover every material averment of the indictment, and the verdict establish every fact made necessary by the statute to the judgment pronounced by the court. We therefore hold that the grand jury, the trial jury and the court of common pleas, were each authorized by law to perform the various functions which the record discloses they respectively performed during the progress of the prosecution.

The first of the two previous offenses charged against the plaintiff in error, and his conviction and commitment to a penal institution on account thereof, all occurred before the statute under consideration was enacted; and for that reason he contends that, as the statute under consideration imposes upon him, on account of this former offense, an additional penalty to that imposed by the law as it stood when he commited the offense, it has, as to him, in the case under consideration, an unconstitutional operation. This view of the operation of the statute is not without plausibility, because it is apparent that, were it not for this earlier offense and his conviction and imprisonment on account of it, the penalty denounced by the statute against one who commits a third offense couldnot have been imposed upon the prisoner under the facts disclosed by the record. That the earlier offense, conviction and imprisonment of the-prisoner, were necessary factors to establish his status of an habitual criminal and his consequent detention as such in the penitentiary for life, must be conceded.

The legal effect of those proceedings, however, was simply to advance him one step towards a class of offenders who were to be subjected to the heavier penalty. The additional penalty was not imposed as a punishment for the first offense, nor for the second one, but because, having been convicted of their commission, he became one of a class of dangerous criminals, against whom more rigorous measures should be invoked. Had he abandoned his evil practices, after his first inprisonment, or even after his second term had ended, the consequences of which he now complains would not have followed. This he did not do, but instead, chose to commit a third offense, and that too with his eyes wide open; for he knew, or was bound to know, when he committed this last offense, that he had become one of a class against whom severer measures had been declared to be necessary if he should again be convicted. It is the third conviction that devotes his future to continuous confinement. A. law cannot properly be considered retroactive when it. apprises one who has established, by previous unlawful acts, a criminal character, that if he perpetrates further crimes, the penalty denounced by the law will be heavier than upon one less hardened in crime. In ’such case the party is informed before he commits the subsequent offense of the full measure of the liability he will incur by its perpetration, and therefore does not fall within the class that is entitled to the protection afforded by the constitutional guaranty against the enactment of ex post facto, or retroactive laws, for the object sought by those guaranties, in respect to this kind of legislation, is that no transgressor of a penal statute, shall be subjected by subsequent legislation, to any penalty, liability or consequence, that was not attached to the transgression when it occurred.

The conclusions to which we have arrived are supported by the highest tribunals of a number of the states of the Union, and by authors of acknowledged authority in this department of jurisprudence. Cooley’s Cons. Eim., 327; 1 Bish. Crim. Eaw, section 959-965; Kelly v. The People, 115 Ill., 583; Ingalls v. The State,Wis., 647; Rand v. Commonwealth, 9 Grat., 738; The case of William Ross, 2Pick. (Mass.), 165; Plumbly v. Commonwealth, 2 Metcalf (Mass.), 413; Commonwealth v. Graves, 29 N. E. Rep. (Mass.), 579; Ex parte Gutierrez, 45 Cal., 430; People v. Peter Stanley, 47 Cal., 113; Commonwealth v. Marchand, 29 N. E. Rep. (Mass.), 578.

Motion for leave to file a petition in error overruled.


author: By the Court:

text:
    Board of Education v. Board of Education.

      Pubhc schools—Tuition of non-resident pupils—How payment of provided for—Section 4022, Revised Statutes, construed.

    Error to the Circuit Court of Stark county.

      Hermann Preusser and Wann & Bow; for plaintiff in error.

      John C. Welty and James Sterling, for defendant in error.
   By the Court:

1. The contract authorized by section 4022, Revised Statutes, for the admission of pupils from one district to the school of another, is an express contract, to be made between the boards of education of the two districts.

2. The attendance of such pupils in the school of such other district, without objection b}r either board, creates no liability against the board in whose district such pupils reside.

3. Said section of the statute provides that the board of education may contract for the admission of such pupils, “ on such terms as may be agreed upon by such boards.” This evidently means an express agreement, evidenced by action of the board, and not a mere silent acquiescence.

Judgment affirmed. ■


author: By thb Court:

text:
    Hanson v. Luce, Treas. Monaghan v. Luce, Treas.

      Dow law taxes—Section 8092-8, Revised Statutes, construed.

    One who traffics in spirituous, vinous, malt, or intoxicating liquors, at á regular place of business, and pays the assessment of $250.00 therefor, as required by section 8092-8, Revised Statutes, known as the Dow law, has the right to store all, or a part, of his liquors in a cooler or building separate and apart from his regular place of business, without paying a second assessment, on account of such cooler or building; provided no purchases or sales of such liquors be made at such building or cooler.
    (Decided June 13, 1893.)
    Error to the Circuit Court of Ashtabula county.
    Plaintiff in each of these cases filed a petition in the court, of common pleas to enjoin the treasurer from collecting an assessment of what is known as the Dow tax 'on traffic in spirituous liquors under section 8092-8, Revised Statutes. Plaintiff was successful in each case in the common pleas court, and each case was appealed to the circuit court, and tried in that court, and a finding of facts made in each case. Defendant was successful in the circuit court, and the cases, are brought here by plaintiffs on petition in error to reverse the judgments of the circuit court.
    In the Hanson case the findings of fact and law are as follows:
    First—That the plaintiff, John Hanson, is the owner of a building situated on a lot of land owned by him on Pacific street, in the village of Ashtabula Harbor; that said building fronts towards Pacific street; that said plaintiff lives, in the upper part of said building, and for nine or ten years has kept saloon in the lower part thereof, in which saloon he has during all of said time sold beer and other liquors at retail, and that he was so selling there during the entire time, and during the whole of the year 1889; and was also doing business during said time as a wholesale dealer in beer.
    Second—That said John Hanson also owned a small building on the opposite side of Pacific street from his saloon, and one hundred and fifty-five feet distant from said saloon, in a line drawn diagonally across from one to the other. This building-was built two years ago; and the back part of it is used only for the storage of beer, and ice is taken in and placed on the heads of the kegs of beer to keep the beer cool. The front room, a room twelve by fourteen feet, is used as a shoe shop.
    Third—That since the building of said cooler said plaintiff has, in addition to retailing at his saloon, carried on the business of wholesaling beer. That upon the receipt of beer it is unloaded by plaintiff from the cars, and taken directly to said cooler, where (except what plaintiff takes therefrom to his saloon to retail therein), it remains in said cooler until disposed of to the various customers who buy it. That said plaintiff, during said two years, and during the year-1889, kept a hired man, whose business it was to drive a delivery wagon, and each morning load onto said wagon direct from said cooler the beer to be delivered to plaintiff’s customers, and to deliver the same, and at the same time to sell to all who wished to buy and pay for all such quantities of beer as such purchasers might desire to purchase at wholesale. But no beer was sold at said cooler.
    Fourth—That said John Hanson was in due time regularly assessed upon the business of trafficking in spirituous, malt and vinous liquors at his said premises at Ashtabula Harbor, in said county of Ashtabula, and as being carried on at one place only. That subsequently the deputy county treasurer called upon said plaintiff and informed him he was liable to an additional assessment on account of said wholesale business carried on at and in connection with said "cooler, and assessed the plaintiff upon the business of trafficking in spirituous, vinous and malt liquors, as being carried on at and from said cooler, in addition to said former assessment. If said plaintiff was, by reason of the facts aforesaid, under the statutes of Ohio, liable to assessment as carrying on the business of trafficking in spirituous, vinous and malt liquors for each of said two places, then said second assessment was duly and regularly made, and if, under the statutes of Ohio, he should be assessed by reason of said facts upon the business of trafficking in spirituous, vinous and malt liquors, as carried on by or for him at one place only, then the plaintiff is by said second assessment wrongfully assessed.
    Fifth—That afterwards, and in due time said plaintiff paid into the county treasury the sum of $125.00 as the semiannual payment of his tax for the business carried on at the saloon, and also $125.00 for the semi-annual tax on his business carried on in connection with said cooler, which last payment was made under written protest.
    And as conclusions of law the court find, that said plaintiff was, at the time designated in his petition, carrying on his said buisness of trafficking in spirituous, vinous and malt liquors at two different places, to-wit: At his said saloon, as one place, and at his said cooler as the other place, and that each of said assessments made against him was legal and made in accordance with law and should be paid, and that said petition should be and the same is hereby dismissed at the costs of said'plaintiff.
    In the Monaghan case, the first and second findings of fact, are as follows:
    “First—That the plaintiff, Patrick Monoghan, is the owner of a building situated on a lot of land owned by him at the corner of High and Market streets, in the village of Ashtabula Harbor; that said building faces and'fronts, towards High street; that said plaintiff lives in the upper part of said building, and for nine or moré years has kept saloon in the lower part thereof, in which saloon he has, during all of said time, sold beer and other liquors at retail, and that he was so selling there during the entire year of 1889.
    “ Second—That four years ago, plaintiff erected in the rear of said saloon building, a new building called a refrigerator, or cooler; which cooler is situated four feet six indies distant from said saloon, but is connected therewith by a covered way four and one-half feet wide, and plaintiffs kitchen also is connected with it on the south. That said cooler is sixteen by twenty feet in extent, and six feet high between floors where beer is stored; that but one window opens into this room, and but one door; that the space above said room is occupied by large quantities of ice, stored there for the purpose of keeping the beer cool.
    The third, fourth and fifth findings of fact, and the conclusions of law in the Moiiaghan case, are the same as in the Hanson case.

    Exceptions were duly taken to the conclusions of law in each case.

      Edward H. Fitch, R. W. Calvin, and Theodore Hall, for plaintiffs in error.

      Northway & Williams, and Charles Lawyer, Jr., for defendant in error.
   By thb Court:

From the facts found by the circuit court it appears that upon the receipt of beer by plaintiff, it was put from the cars into the cooler, where it remained until delivered by the driver of the beer wagon to customers, but no beer was sold at said cooler. It thus appears, that beer was neither bought nor sold at the cooler, but that all the business of buying and selling wTas done at the saloon, and that the cooler was a mere place of storage, and not a place of business, and that no traffic whatever was carried on at the cooler. No buying; no selling.

From these facts so found, the court finds as a conclusion of law, that the plaintiff was carrying on his business at “two different places, to-wit:—at his said saloon as one place, and at his said cooler as the other place.”

It is difficult of comprehension how the business of trafficking in an article can be said to be carried on at a place where such article is neither bought, sold nor bartered.

The traffic contemplated by the statute consists in the purchase and sale or barter of the liquors named therein, and thz place of the traffic is the place where such purchase sale or barter is had, and not the place where the liquors are stored for cooling or safe-keeping.

The sales of beer made by the driver of the beer wagon, must be referred to the place where his employer carried on the traffic, and not to the place of storage.

The conclusion of law is not warranted by the facts found, and in such case the facts must control. It is, therefore, clear that the circuit court erred in its conclusions of law, and that its judgments should be reversed, and judgment should be rendered for plaintiff in each case, as prayed for, with costs.

Judgment accordingly.


author: Spear, J.

text:
    Leonard et al. v. Adm’r of Kebler et al.
    Assignments—■ Delivery essential to validity of.

    1. Delivery is essential to the validity of an assignment.
    2. K., being about to take his own life, drew up and signed an instrument purporting to convey to L. and two others named therein, as security for debts by him owing to them severally, certain articles of personal property, also notes and choses in action which were then held by another as collateral security for a debt. The instrument was not executed in pursuance of any arrangement with the persons named therein, or either of them, and was without the knowledge of either. It was enclosed in an envelope addressed to L-, who was a relative of K., and then a member of his family. In another envelope addressed to her, was a -letter of farewell, and the two envelopes were surrounded by a rubber band. K. had, after the signing of the papers, several opportunities to deliver them to L, but did not do so, nor speak of them. After he had taken the poison, and when he was unable to speak and nearly unconscious, L. entered his room, and, finding the papers lying by his side on the bed, took them into her possession and read them. K. had no knowledge of this. He did not regain consciousness, and died some four hours afterwards.

      Held: That the persons named in the instrument took no title to the property described by reason of the attempted assignment.
    3. K. and R. were partners, as lawyers. On and prior to June 23, 1887, IC. hail become indebted to R. for money loaned, about $13,000, on a portion of which R. held an assignment of ten railroad bonds, of $1,000 each, as security. Part of the money was loaned to enable K. to repay money which, as he told R. at the time, he had received, as a member of the firm from third persons, to invest for them, and had converted to his own use. On the date above named, IC. executed and delivered to R. an assignment of twenty-five railroad bonds, and a warranty deed of land. Ten of these bonds were the ones before mentioned, thirteen were in the possession of bankers as collateral on a claim held by them against K., and two were in the hands of another. IC. was also indebted to R. on firm account for fees, etc., received by him in excess of his share, which was known to R., but (n'o statement of the partnership account having been made) the exact amount was not known. At the time of the delivery of the assignment and deed, IC. said to R. that he had been unable to make up the statement yet, but he was indebted to R. on the firm account, and added: “Whatever may be coming to you on a settlement of our affairs; I am going to get up this statement, and whatever is coming to you on settlement of partnership affairs, I want to secure you against. I want to make you perfectly secure. Naturally, you think that I have not done exactly what was right here, and I want to show you that I want you to feel absolutely secure and safe in every way, and I have drawn up this assignment. I want you to hold that as security for the money you have advanced, and for whatever is coming to you until we have a full settlement of our partnership affairs; on settlement of the partnership matters.” R. took the assignment and deed, saying “all right.”
    The partnership was dissolved, by mutual consent, September following, but no statement was made, nor final settlement of partnership affairs had.
    The deed was filed for record with the county recorder November 23, 1887, about 9 o’clock, A. M., and, on the same day, about 1 P. M., IC. died.
    K’s estate is insolvent.
    In an action b}' the administrator of IC, to determine the right of R., under his assignment and deed,
    Held: The assignment and deed were intended as security, not only for such amount as was due to R. for money loaned, and balance due on fee account, but as indemnity to protect from liability for acts of K. regarding partnership transactions, and the property so conveyed is to be subjected to the payment of any obligation that may be due from the estate of K. to R., upon final settlement of all partnership affairs, including as well liability arising from misuse, if any, of the money of clients of the firm, by K., as balance accruing upon adjustment of fee account.
    (Decided June 20, 1893.)
    Error to the Circuit Court of Hamilton county.
    The action below was brought December 22, 1887, by Wm. J. Coppock, as administrator of Charles A. Kebler, deceased, against Henrietta D. Eeonard, Adolf Hartdegen, and Mary S. Russell, plaintiffs in error, and Frederick G. Roelker and others, as creditors of the deceased, and the firm of S. Kuhn & Sons, to determine adverse claims of the plaintiff and the said creditors, to certain notes, bonds, and other securities described in the petition, in the possession of S. Kuhn & Sons, and held by them in trust, subject to a small claim in their favor.
    Since the filing of the petition in error, the claim of Henrietta D. Eeonard has been arranged, and is, therefore, not further considered.
    Adolf Hartdegen’s claim was, in substance, that during the month of August, 1887, he deposited with Kebler $3,800, to be by him invested for defendant, which sum Kebler then converted to his own .use. ' In consideration of said indebtedness, on November 23, 1887, Kebler sold, assigned and transferred to defendant all the personal property described in the petition. He prayed an order for delivery of the property to him, and, if sold, then that the debt due him be paid from the proceeds.
    Mary S. Russell’s claim was, in substance, that the law firm of Kebler & Roelker, of which deceased was a member, while acting as attorneys for her, became indebted to her in the amount of $3,290, and that, in order to discharge the same so far as possible, Kebler, as a member of the firm, sold and assigned to her, by written instrument dated November 23, 1887, the different pieces of personal property described in the petition. She asked a sale; that her rights might be protected, and for all proper relief.

      F. G. Roelker’s claim, set up by cross-petition, was founded upon an assignment by Kebler to him of twenty-five bonds, of $1,000 each, of The Cincinnati, Georgetown & Portsmouth Railroad Company, and a warranty deed conveying lands known as “the homestead lot,” both executed and delivered to him June 23, 1887, (the land being part of that described in plaintiff’s petition in case number 79,812 pending in said court), his contention being that the assignment and deed were given as security for certain indebtedness owing to him by Kebler, and as indemnity against liability for certain acts of Kebler in regard to the money of clients of the firm, the particulars of which transactions were concealed by Kebler in his lifetime from Roelker. Facts bearing upon this claim are stated in the opinion.
    By order of court, the two suits'brought by Coppock, adm’r, were consolidated. Replies were filed by plaintiff, the cause tried in the common pleas, and thence appealed to the circuit court. That court, upon trial (making separate findings of fact and law), found that the debts existed as claimed respectively by the plaintiffs in error, but otherwise found against them, ánd dismissed their cross-petition; it also found the amount due Roelker, as claimed, and that he had a lien for that amount, but otherwise found against him, and decreed accordingly.
    The present action is brought by the plaintiffs in error, and by Roelker by cross-petition in error, to obtain a reversal of the judgment of the circuit court.
    Additional facts appear in the opinion.

      Avery & Holmes, Stephen Coles and Franklin T. Cahill, for plaintiffs in error.
    We contend that the finding of facts established such a constructive delivery as-is sufficient in law to support the validity of said instrument.
    We contend the court erred in failing to distinguish between the case of a gift without consideration, and the case of - a grant in furtherance -of a contract, or in payment of or as security for a prior existing indebtedness. The court expressly put the case at bar upon the same footing as a voluntary gift.
    And then the court bases its decision upon the two leading authorities in Ohio, as to what constitutes sufficient delivery in the case of gifts. 16 Ohio St., 586; Flanders v. Blandy, 45 Ohio St., 108.
    While we may admit that these cases are sound law as to delivery of gifts, which are purely gratuitous, they are not authority and are not law where the deed or instrument is executed in furtherance of a contract, or in payment of or as security for a prior existing indebtedness; in other words, where the instrument is supported by a consideration and is not a mere gratuity. The books abound in authorities and this distinction is recognized practically everywhere, either expressly or tacitly. In the case of a pure gift the rule is very strict, and much more is required than where the instrument has a consideration to sustain it. Nazro v. Ware, 38 Wis., 443; Exton v. Scott, 6 Simons, 31; 16 Q. B. 752, note; Steven v. Hatch, 6 Minn., 65; Deefendorf v. Deefendorf (Sup., C. S.) 29 N. Y. S. R., 122; Mitchell v. Ryan, 3 Ohio St., 377; Conlan v. Grace, 38 Minn., 276, 281; Goodpastor v. Leethens, (Ind.,) 23, N. E. 1090; Sommers v. Pumpray, 24 Ind., 231; Flint v. Phipp, 19 Pac. Rep., 543; Terhume v. Oldis, (N. J.) Centr. Rep., 117; 14 Alt., 638; Newton & Seeley v. Bealer, 41 Iowa, 334; Hinson v. Bailey, 73 Iowa, 544; Stone v. French, 37 Kan., 145.
    It is apparant from the above authorities that the test to which the case at bar is to be put, is—Did Kebler intend the instrument to vest the title in the grantees? The answer must be, yes. He wrote the instrument preparatory to committing suicide, and then took the fatal poison. He put the paper where it would be-found by the first person who should chance to come to him, with the intention that it should be so found, and it was so found and taken possession of.

      Kittredge & Wilby, for F. G. Roélker, cross-petitioner in error.

      The transfer to Roelker was absolute on its face. Its character as a mortgage and as security is derived, not from a written defeasance, but, from the statement of Kebler to Roelker, concurrent with the delivery of the property. That defeasance Roelker reproduces on the stand in Kebler’s own words, that the property then delivered to Roelker should be his (Roelker’s) security.
    That part of the consideration for this transfer, which was a contingent liability of a character such as would be created by frauds upon Roelker through partnership misdeeds of Kebler, would certainly not be an unlawful consideration, and would be entitled to full protection as a valid lien upon the property conveyed. This we understand to be conceded.
    Eiens for contingent liabilities, furthermore, are not unusual. Such are mortgages by a guardian to his ward as a substitute for freehold security in the administration of the ward’s estate to secure the ward against possible failure to turn over to him at majority his entire property. Such also are mortgages to secure employers against the contingency ■of employes’ defalcations.

      Wilby & Wald., for Coppock, administrator.
    The only question arising on the cross-petition in error of Frederick G. Roelker is whether the circuit court erred in limiting his security to cover only the indebtedness on the two notes and the check, and for sums received by Kebler “for fees and other partnership items in excess of the amount due him.”
    Roelker claimed that his security covered more; that it was given not only to secure a debt, but, in addition, by way of indemnity to reimburse him for any loss that he might suffer, by reason of liability as partner, for the unlawful acts of Kebler.
    The court held that the assignment and conveyance were a security for all of Roelker’s claims against Kebler, except only the claim for indemnity against Kebler’s misappropriations of the moneys of the firm’s clients. The transfer to Roelker was absolute on its face. Its character as a mortgage and security is derived, not from a written defeasance, but from the statement of Kebler to Roelker, concurrent with the delivery.
    The entire controversy turns upon the interpretation of that statement, viewed in the light of the surrounding circumstances.
    On June 23d, 1887, Kebler was indebted to Roelker for money loaned on two notes and a check, in the. aggregate sum of $11,875, and also for a balance on an unsettled partnership account, the amount of which was then unknown, which Roelker thought was between two and three thousand dollars, as a rough estimate, and which has since been settled to have been $3,090.59.
    Under these circumstances Kebler executed the absolute assignment of the bonds and deed of the real estate to Roelker, and made to the latter the statement.
    It is the construction of the statement which is complained of by Roelker. His counsel in their brief express a doubt of the propriety of the court’s conduct in undertaking to construe the language of the “statement,” and charge the court with having taken “the liberty of ignoring the language in which the transaction was expressed.” We understand, however, that it is not the “liberty” but the duty of courts to construe the language of instruments, and often to do so, by limiting the meaning of words of general import to those matters which were in the minds of the parties employing them. And, assuming (what we do not concede) that the “statement” is susceptible of being interpreted so as to make the security cover indemnity against liability for the frauds or malversations of Kebler, we maintain that the court was right in its construction that such purpose was not within the comtemplation of the parties, and hence such result not the effect of their language. Harrison Ainslie & Co. v. Muncaster, 1891, 2 Q. B. 680; Deer Lake Co. v. The Michigan L. & I. Co., 89 Mich., 180; Lyall v. Edwards, 6 H. and N. 337.
    Surely, it can not be said, that when the bonds were transferred, and the realty conveyed'', on June 23, 1887, either, and much, less, that both of the parties contemplated a security covering anything but these enumerated items.
   Spear, J.

The claims of Adolf Hartdegen and Mary S. Russell rest upon the same facts, and may be considered together. Whether or not these parties have a standing in court on their cross-petitions, depends upon the legal effect of a paper purporting to be an assignment, dated November 22,1887, signed by Charles A. Kebler, of which the following is a copy:

“Cincinnati, November %% 1887.

“In consideration of $9,000.00 owed by me to Henrietta D. Leonard, I sell, assign and transfer to Henrietta D. Leonard, all my household furniture, useful and ornamental, books, silverware, pictures, linen, carpets and everything contained in my house on the Reading road, including jewelry and everything else; also, my two horses, one at pasture, one in my stable, carriage, buggy, wagon, harness, cows and everything contained in said stable, except the pony and appurtenances, which belong to my son John. Also a certain promissory note made by W. S. Rix or his wife to my order, for about $200; also a certain note to my order for $500.00 made by C. A. G. Adáe. (The mortgage of John M. Strobel for $2,500.00, on which $1,000 has been paid, belongs to her, Kuhn has it). Also all my right and interest in and to The Cincinnati, Georgetown and Portsmouth Railroad Company. Twenty-five bonds of said road owned by me and my interest in its stock after the debts for which they (the bonds) are pledged are paid.

“I also sell, assign and transfer to the said Henrietta D. Leonard, any other collateral owned by me and not needed by S. Kuhn & Sons, to pay the $5,000-note, for which twelve bonds of the said road and certain mortgage notes are held as collateral. I also sell, assign and transfer, all for said first named consideration, all my office furniture, law books, safe, and all other articles owned by me at or pertaining to my law office, No. 5 West Fourth street, Cincinnati, Ohio, to said Henrietta D. Leonard; also a certain note and mortgage made by T. Lewis Brown to my order for $4,138.10, now held by S. Kuhn & Sons as collateral for two of my notes for $500 each.

“After the above debt of $9,000 has been satisfied, I sell, assign and transfer to Adolf Hartdegen anything or everything above transferred, or the proceeds of the same, in consideration of $3,800 I owe him, and until said proceeds havé paid $3,800.

“After said H. D. Leonard and Adolf Hartdegen have been paid in full, I sell, assign and transfer to Mary S. Russell any and-all articles or proceeds left until my indebtedness to her is paid.

“Witness my hand and seal this November 23d, 1887.

“(Signed:) Charles A. Kebler, [seal].”

The findings of the circuit court show that prior to the execution of this paper, Mrs. Henrietta D. Leonard had entrusted Kebler, as her attorney and agent, with money to' invest for her, and that at the time of signing the paper, he had of her money for this purpose, about $9,000. He was insolvent, and at the time contemplated suicide. The instrument was not executed in pursuance of any arrangement with the assignees named, or either of them, and was without the knowledge of either of them. The paper was, before five o’clock of the morning of November 23, 1887, by Kebler inclosed in an envelope, addressed by him to Mrs. Leonard, then a relative and member of his family, and, in another envelope addressed to her was a letter of farewell, the two envelopes being surrounded by a rubber band. After the execution of the papers Kebler had several opportunities for delivering them to Mrs. Leonard, but did not do so, nor did he speak to her about them. About 8:30 o’clock A. M. Kebler took prussic acid, from the effects of which, about one ‘in the afternoon, he died. Before his death, but while he was under the influence of the drug, and almost unconscious, being about nine o’clock A. M., Mrs. Leonard entered his room, and found the papers mentioned lying by his side on the bed, and took them into her possession, and read them while he was still alive, but he had no knowledge of it then, nor afterwards, and never gave actual consent thereto. The instrument was intended by Kebler for Mrs. Leonard, for her benefit and that of Adolf Hartdegen, and Mary S. Russell, in order to replace or make good to them the-amount owing to each, but he did not intend that Mrs. Leonard should receive the same until after his death.

Under these facts the circuit court held (3 O. C. C. P-,' 600), “That such paper was never, either actually or constructively, delivered by Kebler to the assignees named therein, or to either of them, and that he did not intend to deliver it during his life—that he did not part with the dominion thereof while he was conscious, and that the assignees took no title to such dioses in action by virtue of such instrument.”

We affirm this holding. “Delivery is the final step necessary to perfect the existence of any written contract.” 1 Daniel on Neg. Inst., sec. 63; 3 Washburn on Real Prop. (4th Ed.) 282; Phipps v. Hope, Adm'r, 16 Ohio St. 586; Williams v. Schatz, 42 Ohio St. 47; Gano v. Fisk, 43 Ohio St. 462; Flanders v. Blandy, 45 Ohio St. 108. And the rule is not changed by reason of the fact that the instrument is based upon a consideration. Canfield v. Ives, 18 Pick. 253; Mills v. Gore, 20 Pick. 28; Younge v. Guilbeau, 3 Wall. 636; Leigh v. Horseme, 4 Mayne. 28; Chamberlain v. Hopps, 8 Vt. 94; Elmore v. Marks, 39 Vt. 538; Boyd v. Slayback, 63 Cal. 493; Pulse v. Miller, 81 Ind. 192.

As to the claim of defendant Roelker, the finding shows, among other things that he and Kebler had been partners in the practice of law at Cincinnati. On and prior to June 23,1887, Kebler had become indebted to Roelker, for money loaned, about $13,000, and as collateral security for $3,000 of it, ten of the railroad bonds described in the cross-petition had been pledged, and were in Roelker’s possession. Part of this money was loaned to enable Kebler to repay money which, as he told Roelker at the time, he had received from third persons for the firm for investment, and had converted to his own use. In September, 1887, the partnership was dissolved. No settlement of the affairs of the firm was made between the members, nor has any final settlement yet been made.

On the 23d day of June, 1887, Kebler executed and delivered to Roelker the assignment of railroad bonds (twenty-five in all) set up in his cross-petition; also the warranty deed of land therein described. Thirteen of the bonds were in the hands of Kuhn & Son, as collateral, and the remaining two in the hands of H. G. Roelker. The deed was filed for record in the recorder’s office of Hamilton county, November 23, 1887, at nine o’clock, a. m.

At the time of the delivery of the assignment and the deed, no statement had been made of, nor did Roelker know the exact state of, the partnership account, though he then knew that Kebler was indebted to him on firm account.

At the time of the delivery by Kebler to Roelker of the assignment and deed, as shown by the testimony of Roelker, who was the only witness as to what arrangement was made between them concerning the same, or as to what was said or done at the time of the delivery thereof, Kebler said, in relation thereto, no other person being present, that he (Kebler) was not able to make up the statement yet, and that the books of the firm had not been closed, but that he was indebted to me (Roelker) on the firm account; and he (Kebler) said also as follows, as stated by said Roelker:

“Whatever may be coming to you on a settlement of our affairs; I am going to get up this statement, and whatever is coming to you on settlement of the partnership affairs, I want to secure you against.
“I want to make you perfectly secure, and naturally you think that I have not done exactly what was right here, and I want to show you that I want you to feel absolutely secure and safe in every way, and I have drawn up this assignment. I want j^ou to hold that as security for the money you have advanced, and for whatever is coming to you, until we have a full settlement of our partnership affairs; on settlement of the partnership matters.”

Roelker then took the deed and assignment and said “all right,” and this was all that was said by either.

The foregoing constitute the material facts relating to the transaction, as found by the court.

Then follows a finding respecting testimony given by Roelker on cross-examination. But these statements are in answer to questions, which are not given, nor does the finding purport to give all he said on cross-examination, upon the subject. We cannot, therefore, conclude that such answers as are given ought to have the effect of impairing the force either of the claim made by Roelker in his answer and cross-petition, or of Kebler’s language which the court finds was in fact used by him, and the question in dispute must be determined alone upon the findings of fact which appear in the record.

The court further found that subsequent to the death of Kebler, divers persons made demand, and have brought or threaten suit against Roelker, claiming to have had dealings with Kebler, acting and professing to act as the partner of Roelker, whereby, as is claimed by said parties, the said partnership, and said Roelker, became and are in debted to them and each of, them for moneys misappropriated by Kebler, in an amount aggregating more than the value of the security transferred to Roelker, as above stated. Roelker had no knowledge thereof until after the death of Kebler.

Thereupon the court found, as conclusion of law, that Roelker had, by reason of the assignment and deed, a lien on the bonds and on the real estate, for a sum aggregating $14,965.59, with interest, as and for moneys loaned, and for fees, etc., received by Kebler in excess of the amount due him, but that the conveyance and the assignment of said bonds, or either of them, were not executed and delivered to Roelker to secure or indemnify him, nor were they intended to secure or indemnify him against any loss or claim by reason of the misappropriation of moneys by Kebler acting and professing to act as the partner of Roelker; and that Roelker has no lien upon or right to hold said real estate and bonds as security, or indemnity for any demand for which Roelker may have become liable as a member of the law firm of Kebler & Roelker, or of any firm of which the two were members, by reason of the misuse of the money, if any, of the clients of the firm by Kebler.

The question, therefore, upon this branch of the case is, whether the security held by Roelker should be limited only to the indebtedness found by the circuit court, or be extended to cover the liability of Roelker for the acts of Kebler with third persons, dealing with him as a member of the firm, as set up in the answer.

This court is not called upon to review the findings of fact, nor to review the evidence, nor to weigh it. The facts. are found, and we are concerned only with the proper legal conclusion which follows.

The assignment and deed gave to Roelker the legal title to the property transferred, from which followed the right of possession to the real estate, and to such of the bonds as were not actually delivered to him, by satisfying the prior lien of those who held them. What was said and done at the time of the delivery of the assignment and deed showed that those papers were to be regarded as mortgages and to be held as security. The evidence which established these facts also supplied the terms of the defeasance. These terms, as embraced in the findings, show that Kebler intended the property as security for whatever might be coming to Roelker upon a settlement of the partnership affairs, and that he was to hold the property as security until they should have a full settlement of partnership affairs. The mortgages partook, therefore, of the nature of indemnity, as well as security. The language contains no ambiguity, but is broad and plain, and it is not the duty of the court, as it seems to us, to search for extraneous facts for the purpose of belittling or impairing the effect of the security, which the words of the defeasance imply.

The allusion to a “statement” by Kebler, evidently had reference to a statement of the then condition of the partnership account with reference to fees, rents, etc., and did not include the idea of misappropriation of funds of clients, and had Kebler stopped there, it would follow, as claimed by the administrator, that the security was intended to make good, (besides the borrowed money), only such obligations as might appear upon an adjustment of that account when made up. But Kebler went further. His language indicates that he was conscious he had done that which was wrong. This he had, before that time, confessed to Roelker, and he well understood that Roelker might feel uneasiness in regard to the risks incident to their partnership relation. As Kebler had done wrong as to one client, it might result that he had, or might, as to others, though Roelker had knowledge only of the one case, and apparently did not anticipate further negligence or misuse of funds. Each could not have failed to realize that liability would attach to Roelker for firm obligations, contracted by Kebler, and that, while one was solvent and responsible, the other was involved, and, in all probability, irresponsible. Then, too, Kebler’s language imports • appreciation of Roelker’s kindness to him, and gratitude for it, and it would be but natural that he would want to give, as Roelker, had he possessed knowledge of the exact facts, would want to receive, security and indemnity sufficient to cover not only liabilities actually then known, but any which might later be shown to exist. To ignore this feature of the 'transaction is to give no effect whatever to the words “naturally you think that I have not done exactly what was right here,” and “I want to show you that I want you to feel absolutely secure and safe in every way,” and “to hold that as security for whatever is coming to you, until we have a full settlement of our partnership affairs; on settlement of the partnership matters.” It would be impossible for Roelker to be “safe in every way,” unless he were protected from Kebler’s wrongful transactions as to the funds of clients of the firm, nor could the property prove a security for whatever should be coming to Roelker upon a settlement if the idea of indemnity for that risk were excluded. There is nothing to indicate that Roelker countenanced or encouraged the acts of Kebler, from which the liability, now the subject of dispute, arose, and therefore it would be neither wrong nor immoral for him to be protected against Kebler’s short comings, of whatever character, which involved liability to him.

It seems evident, therefore, taking into account all that was said and done and understood, that the purpose of the security was to cause Roelker to feel secure and to make him secure in reality. Kebler did not undertake to limit the pledge to any special form of obligation, nor to such as might be then known to Roelker, nor indeed to such as then might be ascertainable. And we think the legal effect of the transaction is to embrace, within the securitjq whatever might, upon a settlement of all the partnership affairs, appear to be due from Kebler to Roelker. The extent of the right to resort to the pledge was to be ascertained when a settlement should be had; not before. Whatever appeared then to be due the property so pledged was to be subjected to pay.

No argument is needed to show that, if any of the claims made by those who charge that Kebler, as a member of the firm, had used their money, are sustained, Roelker will be liable, and Kebler’s estate obligated to re-imburse him, and that this obligation would be one arising out of the partnership matters; for, if the demand of such a creditor is in the nature of partnership business for the purpose of fixing liability on Roelker, it is equally a partnership matter for the purpose of a settlement of partnership affairs. No final settlement of partnership affairs can, therefore, be made, until these disputes are disposed of.

The claim of the administrator is that Roelker shall now give up his security, after satisfying the debt found by the circuit court, and the effect of it, if sustained, will be to compel Roelker to satisfy such demands of creditors as may be found against the firm, and deprive him of all security for reimbursement. This demand, we think, is unreasonable, and against the very letter, as well as the spirit, of the condition of defeasance. The question is made directly between the administrator and Roelker. The administrator can assert no title which Kebler could not, if living, and he ought not to stand in any better position in this attempt to enforce such demand than would Kebler. And the proposition that Kebler could not be heard to' make such an unconscionable claim needs only to be stated to meet with universal acceptance.

We have no occasion to dispute the correctness, as a general proposition of the rule advanced by counsel for the administrator, that a covenant will be restricted in its application to that which was within the contemplation of the parties. But such principle cannot, we think, apply to a mortgage of property given to indemnify against loss to the extent of limiting it to such liabilities only as were known to the mortgagee where he does not stand equally, as to means of information, with the mortgagor, and when the language of the pledge is inconsistent with such limitation. Beyond this, the rule does not affect this case, because, as we think, it was fairly within the contemplation of the parties that Roelker should hold his security until a full settlement of all partnership affairs had been had, with the right then to subject the property to his indemnity from all liability arising from Kebler’s acts relating to partnership business, and, as matter of law, it is not of consequence, whether or not the particular acts were, at the time of the taking of security, known, or anticipated.

The judgment of the circuit court, as regards the contention of plaintiffs in error, will be affirmed. As to -that of Roelker it will be modified in accordance with this opinion.