edgment on its face that it was given for value received, establishes, prima facie, that it is founded on a sufficient consideration.

3. See discussion and application of statutes relating to pre-emption rights.

ILLINOIS.

(Supreme Cuurt.)

RAY & WHITNEY V. THOMAS MACKIN. Opinion by Dickey, J., affirming. ́Filed Sept. 26, 1881.

were

Contract Against public policy-fraud. The property owners along a certain street in the city of Chicago having in contemplation the paving of the street, negotiating with a paving contractor ou that subject, and some of the owners had signed a contract with such contractor for the doing of the work. Pending these negotiations a second and rival paving contractor sought to obtain the contract for himself, soliciting the owners for that purpose. Finally, the rival contractors compromised their respective interests in the matter, by the withdrawal of the one first mentioned, and the agreement on his part to aid in securing the contract for his rival, the latter agreeing to pay to the former a certain sum out of the profits expected to be realized for the work. This arrangement was consummated to the extent that the one who was to have the contract under the arrangement between the two rival contractors, did secure it from the property owners. That was brought about in this way; the contractor who withdrew from the contest to obtain the contract for the doing of the work, urged those of the owners who had signed the agreement with him, to transfer their names to the other contract, and at a meeting of a committee of the property owners to consider and determine upon the matter, he wrote out a bid for the work for himself, and a lower bid for the other contractor, according to the arrangeinent beforehand. In an action to recover upon the agreement made by the contractor who secured the contract to do the work, to pay to the other a certain sum out of the profits of the job, it was held, that the agreement sued upon, taken in connection with its consideration, was against public policy, and a fraud upon the persons who were to pay for the improvement of the street, and therefore formed no valid foundation for the action.

JAMES B. HOBBS v. DANIEL FERGUSON'S ESTATE.Opinion by DICKEY, J., affirming. Filed Sept. 26, 1881. Practice To show ruling of law in trial by court.— On a trial by the court without a jury, in order to present a question of law to this court as having been passed upon by the court below, the party should submit to the trial court written propositions of law to be "held" or "refused," or set out in the bill of exceptions the ultimate facts found by that court from the evidence.

CAROLINE A. JACKSON v. GEORGE A. MINOR ET. AL.Opinion by DICKEY, J., reversing and remanding. Filed Sept. 26, 1881.

1. Fraudulent Conveyance-Gifts not valid as to preexisting creditors.-The purchase by a man of property for a woman in his own name and its conveyance to her without any pecuniary consideration, and in view of illicit intercourse with her, past and expected, will not be sustained as against the claims of creditors for debts owing at the time of the grant, which he at that time was unable to pay..

2. When property was bought for another as a gift and such person put in possession of the same in 1870, and the conveyance made to her and recorded in December, 1871, at which time the party making the purchase and gift was solvent and in good credit, it was held, that the gift could not be set aside by creditors for debts accruing to them in 1873 and 1874.

3. Compromise-Setting aside for fraud.-A compromise by a debtor with his creditors, by which he paid fifty cents on the dollar of his indebtedness and procured releases, will not be set aside in the absence of proof of any false representations or fraud, except his

omission to inform his creditors that he had held the title to certain houses and lots, and had made a gift of it to another.

4. Chancery-Relief must be based on case made by the bill.-On a creditors' bill to set aside certain voluntary conveyances as having been made to hinder and defraud creditors, a fair compromise of the debtor with the creditor by which fifty per cent. of his indebtedness was taken in full discharge, cannot be set aside and the settlement opened for fraud when no such case is made in the pleadings as shown by the proof.

5. Deed-Impeaching execution and acknowledgment by wife of grantor.-The testimony of a widow that she never joined with her husband in the execution of a deed, or acknowledged the same, is not sufficient to overcome the certificate of the officer as to her acknowledgment, and his testimony in support thereof.

1.

Practice-Finding of facts by Appellate Court.The statute does not authorize the Appellate Court to incorporate into the record any special finding of facts except in cases where the same is different in part at least from the finding in the Circuit Court.

2. Same-When general finding must prevail.-A general finding by the Appellate Court that "the evidence supports the verdict," must stand, unless there be some special finding inconsistent with it.

3. When a partner on a sale of his interest suffers his name to remain as a member of the firm, taking an agreement from the purchaser to pay all the indebtedness of the firm, whether contracted in the past or to be contracted in the future, he will be bound by a note given by a partner in the old firm name to one without notice of any actual change in the firm.

4. Notice Of partner's defect of power through agent. -Where partnership articles provided that A should not give the firm note without the consent of B, another partner, which provision had been habitually disregarded without objection for about two years before the giving of a firm note by B for money loaned to the firm, the fact that C, another partner, acted as the agent of the lender, is not sufficient to charge the latter with notice of such provision, without any proof that it was present in the mind of C while acting as agent.

5. Same-When notice to agent applies to principal.-. It seems doubtful whether notice to an agent of one loaning money and taking a firm note, who is also one of the borrowers and makers of the note, will be notice to the principal.

6. Parol evidence.-Of agreement at the time of making written contract.-Parol testimony that at the time of the execution of a written agreement for the sale of a partner's interest in a partnership, he agreed to let his name remain as a member of the firm, is admissible in a suit by a third person seeking to charge him as a partner, such evidence does not vary the terms or conditions of the written contract, and such agreement is not in any proper sense a part of it.

HENRY G. HARPER V. THE UNION MANUFACTURING COMPANY ET AL.-Opinion by DICKEY, J,, affirming. Filed Sept. 26, 1881.

1. Corporation-Liability of stockholders to creditors.Under section 9 of the act of 1857, relating to manufacturing corporations, the stockholders are made severally and individually liable to the creditors of the company to the amount of stock held by them, for all debts, etc., made by such company prior to the time when the whole capital stock shall have been paid in. This liability cannot be enforced by a single creditor suing in his own behalf alone. It can be enforced only upon a bill brought by, or at least in behalf of all the creditors of the corporation.

2. Same-Stockholders' liability not enforcible until assets of the corporation are exhausted-Parties to bill.-Stockholders in a corporation organized under a law making them liable individually for the debts of the corporation, will not be required to pay any portion of such debts, until the assets of the corporation are first exhausted. If such assets are in the hands of an assignee for the benefit of creditors, he will be a necessary party to a bill in

chancery to enforce the stockholders' individual liability.

3. Statute-Liability of stockholders superceded by act of 1872.-The court are inclined to think that the provisions of the act of 1857 relating to corporations, and making stockholders individually liable for the debts of the corporation, were superceded and became inoperative by reason of the general law of 1872 upon the same subject, but find it unnecessary to adjudge that question.

SUPREME COURT OF OHIO.

NUARY TERM, 1881.

Hon. W. W. BOYNTON, Chief Justice; Hon. JOHN W. OKEY, Hon. WILLIAM WHITE, Hon. W. W. JOHNSON, Hon. GEO. W. McILVAINE, Judges.

TUESDAY, October 25, 1881.

GENERAL DOCKET.

No. 939. Ingham & Bros. v. George Lindeman. Error to the Probate Court of Hamilton County.

MCILVAINE, J. Held:

1. Under the act of 1859 "regulating the mode of administering assignments in trust for the benefit of creditors," mortgaged chattels in possession of the assignor (mortgagor) pass to the assignee and become assets in his hands to be administered, notwithstanding the condition of the mortgage was broken before the assignment. Lindeman v. Ingham Bros., 36 Ohio St. 1, approved.

2. After the sale of such property by the assignee under an order of the probate court, where an action is brought by the mortgagee against the assignee for the conversion of the property to his own use, reasonable attorney fees in defending the trust should be allowed to the assignee from the proceeds of the sale of such property.

3. In determining the amount of such allowance, the court is not concluded by the amount actually paid or by the opinion of witnesses as to the value of the services. 4. No allowance should be made to such assignee for the expense of employing an auctioneer, unless the court directing the sale, is of opinion, under the circumstances, that the services of an auctioneer were necessary. Judgment affirmed.

White, J., dissented, adhering to his dissenting opinion in the case as reported in 36 Ohio St. 1.

1190. Ohio ex rel. Wm. M. Shinnick Jr. v..John A. Green. Quo warranto. Reserved in the District Court of Muskingum County.

JOHNSON, J.

The council of the city of Z., a city of the second class, consisted of eighteen members, duly qualified, who with the mayor were legally assembled to organize, as required by Sec. 1676, of the Revised Statutes. The mayor was acting as president and the election was proceeded with. A motion was made to elect S. clerk, objection was made to this mode of electing, which was overruled by the mayor, against which ruling nine members protested. On the adoption of the motion by a roll call, the nine protesting members refused to vote, so that the vote stood nine yeas and no nays. No other candidate was in nomination or voted for. One of the nine, not voting, objected, because no quorum voted, but the objection was overruled and 8. was declared elected, to which the nine not voting protested. Held:

1. That it was competent to elect by a motion, there being no other person than the one named in the motion in nomination.

2. All the members being present and engaged in holding the election, members by refusing to vote when their names are called, cannot defeat the election, or divest the body of the power to elect.

3. In such case the legal effect of refusing to vote is an acquiescence in the choice of those who do vote, and this

is so, although those refusing to vote object to the mode of voting, and on the ground that no quorum voted. Judgment for the relator.

86. James Cullen and Charles B. Russell, partners as James Cullen & Co. v. Ezra Bimm and Christian Herchelrode. Error to the Superior Court of Cincinnati.

OKEY, J.

1. If a vendee refuse to accept personal property tendered in accordance with the terms of the contract of sale, he is liable in damages for the difference between the contract price and its market value; and the fact that the vendor, against the objection of the vendee, made an invalid sale of the property to himself, and thereafter treated it as his own, does not change the rule, nor defeat the action, where the same is brought to recover damages for non acceptance of the property by the vendee. 2. In an action for refusing to accept a lot of ice containing several hundred thousand cubic feet, which by the terms of the contract of sale was to be merchantable, the court charged the jury that the plaintiff could not recover unless it appeared that the ice as a lot was of merchantable quality, "fit for the ordinary uses to which ice is put," and such as would "fairly pass in market:" Held, that in refusing to charge that all, that is, every part of the ice should be merchantable, the court did not

err.

3. In such action, the defense being that the ice was not merchantable, a letter of the seller was offered in evidence to show a request to the purchaser to examine the ice. The letter contained a statement that the ice was not merchantable, which statement was corrected in a subsequent letter of the seller, also properly in evidence: Held, that the reception of evidence offered by the seller to show on what information the first letter was written, afforded no ground for a reversal of the judgment. Judgment affirmed.

136. The Pennsylvania Company v. Lorenzo Pitzer. Error to the District Court of Mahoning County. Judgment affirmed on authority of Merrick v. Bowry, 4 Ohio St. 60; Breese v. The State, 12 Ohio St. 146. No further report.

995. Michael G. O'Connor et al. v. Central Building Association, No. 2, of Cincinnati. Error to the District Court of Hamilton County. Settled and dismissed.

1021. Jarvis Postelwait et al. v. The Trustees of Pleasant Township &c. Error to the Common Pleas Court of Putnam County. Reserved in the District Court. Judgment affirmed on authority of Hibbs v. Franklin County, 35 Ohio St. 458; Bowles v. The State, 37 Ohio St. 35. There will be no further report.

1168. Thomas Billingsley v. The State of Ohio. Error to the Court of Common Pleas of Franklin County. Judgment affirmed. There will be no further report.

MOTION DOCKET.

No. 185. Merchants' National Bank v. Pomeroy Flour Company et al. Motion to dismiss cause No 1130, on the General Docket, for want of printed record, and counter motion for leave to file printed record in same cause. Motion to dismiss overruled and leave to file printed record granted.

SUPREME COURT RECORD.

[New cases filed since our last report, up to Oct. 26, 1881.]

1201. Adam Spitsnagle v. Lucretia Spitsnagle, admrx. Error to the District Court of Putnam County. T. E. Cunningham and D. Pugh & Son for Plaintiff; C. J. Swan for defendant.

1202. Jeremiah W. Egbert v. Pleasant Ridge Cemetery Co. Error to the District Court of Seneca County. George E. Seney and Noble & Adams for plaintiff; N. L. Brewer for defendant.

1203. Jacob Robert v. David Sliffe, et al. Error to the District Court of Tuscarawas County. Hance & O'Donnell for plaintiff; A. L. Neely for defendants.

SUPREME COURT OF OHIO.

THE STATE OF OHIO ON THE RELATION OF WILLIAM M. SHINNICK, JR.,

· บ.

JOHN A. GREEN.

October 25, 1881.

The council of the city of Z., a city of the second class, consisted of eighteen members, duly qualified, who with the mayor were legally assembled to organize, as required by Sec. 1676, of the Revised Statutes. The mayor was acting as president and the election was proceeded with. A motion was made to elect S. clerk, objection was made to this mode of electing, which was overruled by the mayor, against which ruling nine members protested. On the adoption of the motion by a roll call, the nine protesting members refused to vote, so that the vote stood nine yeas and no nays. No other candidate was in nomination or voted for. One of the nine, not voting, objected, because no quorum voted, but the objection was overruled and S. was declared elected, to which the nine not voting protested. Held:

1. That it was competent to elect by a motion, there being no other person than the one named in the motion in nomination.

2. All the meinbers being present and engaged in holding the election, members by refusing to vote when their names are called, cannot defeat the election, or divest the body of the power to elect.

3. In such case the legal effect of refusing to vote is an acquiescence in the choice of those who do vote, and this is so, although those refusing to vote object to the mode of voting, and on the ground that no quorum voted.

The object of this proceeding is to obtain the judgment of the court, as to whether the relator is the duly elected clerk of the City of Zanesville. The defendant denies the relator's title to the office, and sets up his own title to the same.

Zanesville is a city of the second class, consisting of nine wards and eighteen councilmen. At the first regular meeting after the April election, to wit: April 25th, 1881, the nine members holding over and the nine members elect, met in the council chamber. The latter were duly sworn by the mayor, who then called the body to order and stated that the first thing in order was the organization of the new council. Such proceedings were had that the mayor declared against the protest of the nine members, that A. P. Stults was elected President.

Afterwards, at an adjourned meeting, John A. Fortune was declared elected President pro tem., by like proceedings and against a like protest. The mayor then stated the next thing in order was the election of a clerk. It was moved that the relator be elected. Objection was made, that the motion was illegal, as no president or president pro tem had been elected, and also, on the ground that it was not legal to elect by motion. The Chair overruled the objection and ordered the roll called on the motion. No other person was nominated and no motion was made to amend by inserting the name of any other candidate. Nine members voted aye and none voted against. The nine not voting were present but refused to vote because of the attempt to elect by motion.

The attention of the Chair was called to the fact, that a quorum had not voted, and therefore, it was claimed the motion was lost. The nonvoting members being present, their names were

again called, but they declined to vote. The mayor then decided that the relator was duly elected, the nine not voting entered a protest against these proceedings, but did not offer to vote for any other person. It appears from the special finding, that during these proceedings all the members were present, nine of whom were protesting against the mode of electing by motion and declining to vote for or against such motion. Also that the nine members not voting, objected to the validity of the election, on the ground that no quorum voted, and that less than a majority voted for the relator. The same proceedings with like objections, were had, as to the election of president and president pro tempore, but as the present litigation relates only to the election of a clerk, it is unnecessary to state them in detail.

Some objection was made on the hearing as to the sufficiency of the bond given by the relator. As the bond is regarded as sufficient, and no point for report was saved by the court, a statement of this objection is not made.

Moses M. Granger for the plaintiff.

A. W. Train and G. L. Phillips for defendant. JOHNSON, J.

The new Council, to be organized, consisted of nine members holding over, and nine members elect. They assembled at the proper time and place. For the purposes of organization the Mayor was ex-officio president, authorized to swear in the new members, call the assembly to order and preside during the organization.

The nine new members were duly sworn, the Councilmen, all of whom were present, were called to order by the Mayor, who announced that the first business in order was the organization of the new Council. The Revised Statutes, sections 1675 and 1676, relate to this subject. No business can be transacted until such organization. As all the members were present, no question as to a quorum for the purpose of organization arises. The statute made it the imperative duty of the eighteen members then present and qualified to act, to "forthwith proceed to organize by electing a president and president pro tempore from their own number, a clerk, and such other officers as by ordinance may be provided." By section 1676, it is further provided, that in cities of the second class the Mayor shall be ex-officio president during such organization, and in case of a tie vote in the choice of an officer at such organization, the Mayor shall give the casting vote.

Two questions made during the proceedings of the Council, and in this court are: 1st, Was it legal to elect by a motion? 2d, Was the relator legally elected? The statute contemplates an election and that each member of the electing body shall have a vote in the choice of any officer, and in case of a tie vote, that the mayor shall give the casting

vote.

The statute provides that in the adoption of ordinances, resolutions and by-laws, the vote shall be taken by yeas and nays, and be recorded

on the Journal; and no contract, agreement or obligation shall be entered into, except by ordinance or resolution, nor any appropriation of money, except by ordinance [Rev, Stats. § 1693].

In these specified cases, and perhaps others, the mode of voting, is by yeas and nays, but the statute is silent, as to the mode of voting, in the organization of a Council.

"A vote is but the expression of the will of a voter; and whether the formula to give expression to such will, be a ballot or viva voce, the result is the same; either is a vote." People v. Pease, 27 N. Y., 45.

In the case at bar, the vote was by yeas and nays, on the adoption of a motion to elect the relator Clerk. It is essential to a valid election that all who are present, and are constituent members of the elective body, shall have an opportunity to vote. They all, in this respect, stand upon equal footing. As there was but one candidate in nomination, the vote on the motion was a vote for or against that candidate. majority voted for the motion, it was a clear expression that the person named in the motion was the choice of a majority of those entitled to

If a

As no mode of voting, at such an election, is prescribed by law, any mode not forbidden by law which insures to each member the right to vote, and by which the will of the majority can be fairly ascertained, may be adopted.

The mode adopted was the one prescribed by statute, for the transaction of the most important business of the Council, we see no reason why it is not a fair mode of ascertaining the choice of the Council. Certainly this method, by placing the yeas and nays upon record, tended to a higher degree of accountability than by a ballot, though that mode of voting might have been adopted. If any member had a candidate to propose, he could have moved to amend by inserting his name and on this amendment, the vote of each member could have been had.

No question is made but that the relator, was qualified to be elected, and for aught that appears, the objections were not against him personally, but to the mode of taking the vote. If a majority of the eighteen had voted against the motion that would have been a clear expression of the will of the council against the relator. It is equally clear that if a majority voted for the motion he would be elected. We hold, therefore, that under the circumstances of this case, the mode of electing by motion, was authorized by law.

2. Was the relator legally elected?

All the members were present and duly qualified to act. All entered upon the duty of electing the officers necessary to an organization. They proceeded to discharge this duty, but differed as to the mode of voting. The mayor decided, correctly as we have seen, that it was proper to elect by motion.

Nine members which was one less than a quorum, and less than a majority of those present, voted for the motion, and nine refused to vote,