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the bequest. His interest became vested at the taking effect of the will, and, on his death, his right passed to his personal representatives. Reading v. Blackwell, Baldw. C. Ct. 166; Rine: hart v. Harrison's Ex'rs, Id. 177.

That the testator intended that the sale of the land and division of the proceeds should be made by the executors, is shown, we think, by the language used in the last clause of the will. He appoints his son, Seth Painter, and his sonin-law, John Grimesey, his executors, and directs them "to act and see the accomplishment of this my last will and testament, according to the true intent and meaning thereof." It seems to us the testator could not have intended to devolve the making of the sale and distribution of the proceeds upon his heirs; but that he regarded this as a matter to be accomplished by his

executors.

As one of the executors refused to act, the duty of executing the trust devolved, under the statute, upon the other executor. S. & C. Stat. 1629, § 65.

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The petition averred that A. F. Waters, the payee, was the agent of the corporation in taking the note.

Carter Cook alone answered. He denied the execution of the note on his behalf.

The issue was submitted to the court for trial, a jury being waived. It appeared on the trial that Carter Cook was a member of the firm of Hall & Cook, in Cincinnati, from April 1, 1871. to February 1, 1872; that at the date last named the firm was dissolved, and a firm of the same name was formed by L. B. Cook, a son of Carter, and said Hall. All the customers of the old firm were notified of the dissolution, and of the form

The remaining question is, whether there is a defect of parties. As the interest vested in Oris is to be regarded as personal estate, his personal representative ought to be made a party. He died intestate; hence, if there has not been, thereation of the new firm; but there was no publiought to be an administrator appointed of his estate, so that, to the extent that may be necessary, the money belonging to his estate may be applied to the purposes of administration.

The interests acquired under the will by the other legatees having been, by them, vested in John Pow, he is the proper party to represent such interests.

If the property in question could be considered as land devised to Oris, it would have descended from him as ancestral property to those who were of the blood of the testator from whom the estate came. But as it must be regarded as of the personal estate of Oris, while the heirs may have been proper, we are not prepared to say that they are necessary parties.

The demurrer on the ground that the petition does not show a cause of action is overruled; and as to the ground of there being a defect of parties it is sustained.

[This case will appear in 36 O. S.]

SUPREME COURT OF OHIO.

CARTER COOK

v.

PENRHYN SLATE COMPANY.

1. In an action by a creditor of a firm to charge the defendant as a member of such firm, neither the reports from a mercantile agency, nor the declarations of other third parties, are competent evidence to establish such liability.

2. When an issue of fact is tried to the court, the admission of incompetent evidence will be ground for reversal, if it appears that upon the competent evidence in the case, the finding ought not to have been made.

3. Where the conduct of a party is relied upon to charge him as a member of a firm of which he is not in fact a member, it should appear that the creditor relied on such conduct, and trusted the firm on the faith of such party being a member.

cation in any of the newspapers of notice of such dissolution. The sign over the door of "Hall & Cook," in ten or twelve inch letters, was allowed to remain; but the names of the members of the firm, which were painted on the side of the door in one and a half inch letters, were changed, the name of L. B. Cook being substituted for Carter Cook. After the change in the firm, Carter Cook had nothing to do with its business; but he engaged in business in Cincinnati for himself, carrying on the roofing, stove and tinning busi

ness.

It appears froin the testimony of George H. Waters, a witness for the plaintiffs, that he was their traveling agent, and took the order for the goods for which the note was given, and also the note after the delivery of the goods. He states that he took the order from Hall at the store, on the 11th of September, 1872, and that neither Carter Cook or L. B. Cook was present. He also testified as follows:

"After I got the order, on same day, I inquired at store of Dunn & Witt, who were the partners in Hall & Cook? and Mr. Brown, the book-keeper of Dunn & Witt, told me Carter Cook was one of the partners; I did not notice names of individual partners on the order; I learned that Čarter Cook was one of the partners at store of Dunn & Witt, and thereupon had the order filled; I noticed nothing on sign but Hall & Cook; did not notice names of individual partners on door; the note was signed by L. B. Cook; I supposed he had authority to sign the firin name; he gave it to Hall was not there; I never saw Carter Cook before this suit was brought; I never personally inquired of mercantile agency about Hall & Cook, but my brother did."

me;

The order was written under one of the printed

letter heads prepared by Hall & Cook while Carter Cook was a member of the firm, and in which the names of J. W. D. Hall and Carter Cook were printed as constituting the firm. These letter heads were left in the drawer at the dissolution of the old firm, and they were used by the new firm without the knowledge of Carter Cook.

R. C. Pugh and Wm. H. Pugh, for defendants in error:

Notice of dissolution of partnership should be published in a newspaper. 28 Conn. 43; 24 Vt. 642; 2 Starkie on Ev. 811, 813. Proof of notice necessary. Lindley on Partn. 45, 355; 3 Kent Comm. 66; 2 McLean, 458; 8 Wend. 423; 22 Wend. 193; 20 N. Y. 240; 24 N. Y. 550; 3 Pick.

The plaintiffs offered in evidence the following 177; 2 Pet. 199. reports from a mercantile agency:

"Hall & Cook, Cincinnati, O. Roofers. New firm. C.' is capitalist, and is estimated worth 60 to 70 M $. Hall has no means; the business will be well managed, and they will in all probability be good for what they buy."

"Hall & Cook, 259 W. 3d St., Cincinnati, O. Tin and slate roofing.

"Sept. 18, '72.-Are amply responsible for all they buy, and in excellent credit; safe customers. Estimated worth all the way from 60 to 100,000 $."

The introduction of this evidence was objected to by the defendant, but his objection was overruled and the evidence admitted, to which he excepted.

Goods were subsequently furnished by the plaintiffs to Hall & Cook, amounting to the sum of two hundred and fourteen dollars and nineteen cents; but it is not sought to charge Carter Cook with this amount.

Afterwards, Hall & Cook became insolvent, and made an assignment for the benefit of creditors to Carter Cook. The plaintiffs presented their account against Hall & Cook, including the note sued on, to Carter Cook, as assignee, for allowance.

Subsequntly to the giving of the first order, several letters were written to the plaintiffs by Hall & Cook, under the printed letter heads of the old firm; but in the view taken by the court of the case, they need not here be particularly noticed.

The court found the issue in favor of the plaintiffs, and gave them judgment for the amount due on the note.

On error, this judgment was affirmed by the court in general term. The present proceeding in error is prosecuted to reverse these judgments.

As to liability of Cook as partner, see 12 Ohio St. 179; 1 Smith L. C. 968; 3 Camp. 310; 1 Brod. & Bing. 9; 6 Smedes & M. 335; 17 Vt. 449; 2 McLean, 347; 2 Starkie on Ev. 804.

WHITE, J.

The court erred in the admission in evidence of the reports of the mercantile agency. The question in issue was whether Carter Cook was a member of the firm at the time the goods were ordered and the note was given; or, if he was not a partner in fact, whether his conduct was such in regard to the transaction that the plaintiffs were authorized to charge him as such part

There is nothing in the evidence to show that the defendant authorized these reports or was in any way connected with them. They cannot, therefore, be used to charge him with liability. So, also, is the testimony of the witness, Waters, incompetent, that on the same day he got the order he inquired at the store of Dunn & Witt, who were the partners in the firm of Hall & Cook, and was informed by the bookkeeper that Carter Cook was one of the partners. If he was ignorant of whom the firm was composed his duty was to make inquiry of those he was about to credit, and not of strangers.

The case was tried to the court, and if the finding ought to have been for the plaintiffs, upon the competent evidence in the case, the defendant would not have been prejudiced by the admission of the incompetent evidence. But from an examination of the record, we cannot say that such is the case. It seems to us that the court took an erroneous view of the case, and was influenced in reaching its conclusion by the incompetent evidence..

The plaintiffs never dealt with the old firm; nor does it appear, as we understand the record, that they knew of what persons it was composed until long after its dissolution.

Whether Carter Cook was guilty of such negligence by leaving the printed letter heads of the old firm in the possession of the new, as would charge him as a partner where credit was obtained by their use, we need not now inquire, for it does not appear that they operated to obtain such credit. Waters, who took the order and had it cred-filled, as he states, says that he did not notice

J. H. & J. A. Clemmer, for plaintiff in error: Notice, by publication in newspaper, of dissolution of firm, is not necessary to protect outgoing partners against persons not having previous dealings with the firm. Every new itor is bound to inquire who are the parties really interested at the time in the firm. Story on Partn. § 160; Parsons on Partn. 413.

An advertisement is not indispensable Its place may be supplied by something else. Lindley on Partn. 420; Wardell v. Haight, 2 Barb. 549; Lovejoy v. Spofford, 3 Otto, 430.

the individual names on the order; and, consequently, he could hot have given credit to Carter Cook by reason of his name being printed

thereon.

Judgment reversed and cause remanded for a new trial.

[This case will appear in 36 O. S.]

SUPREME COURT OF OHIO.

MELVIN v. WEIANT.

Words spoken of a man imputing to him an act of sodomy, are not actionable without an allegation of special damage. Davis v. Brown, 27 Ohio St. 326, followed.

Error to the District Court of Marion County. H. T. Van Fleet, for plaintiff in error. Scofield & Johnston, for defendant in error. BOYNTON, J.

The original action was one of slander,the petition in which charged the defendant with maliciously speaking of and concerning the plaintiff, in the presence of others, words imputing to him an act of sodomy. A demurrer to the petition was sustained, and judgment given for the defendant. On error to the district court, the judgment of the court of common pleas was affirmed. The object of the present proceeding in error is to reverse both judgments. We fully agree with counsel for the plaintiff, that the words spoken of his client were of the grossest and most scandalous character. It would be difficult to put into words, a charge, which, if believed, would more certainly exclude from society the one against whom the same was made, or more surely expose him to public odium and disgrace. Formerly, in England, the offense was deemed of a nature so heinous, that the delicacy of the common law would not permit it to be named in its indictments. 4 Blackstone Comm. 215.

But, notwithstanding this, the act itself has never been declared a crime in Ohio. Nor has it ever been enacted that an imputation that a person is guilty of such act, however untrue and malicious, shall lay the foundation for an action of slander. It may be, and quite likely is, true, that this want of statutory regulation upon the subject, has resulted, in the one case, from a reluctance to believe that a human being could be found sufficiently depraved to perpetrate so foul an act; and, in the other, so reckless of another's rights as to charge the existence of such act, without the most undoubted proof of its truth.

However this may be, the fact remains that no statutory regulation upon the subject exists, and from this it follows that the words set out in the petition, are not in themselves actionable, and consequently, unaided as they are by matter showing special damage, lay no foundation for recovery, unless, because of the character of the act imputed by them, they are held to constitute an exception to the general rule. See Hollingsworth. Shaw, 19 Ohio St. 480. This precise question was before the commission in Davis v. Brown, 27 Ohio St. 326, where it was held no such exception prevailed.

To this ruling we are inclined to adhere. Some members of the court, in view of the heinous character of the charge, and of its direct and certain tendency to degrade and exclude from decent society the person against whom the same is made, would have inclined to regard the in

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In an action by a railroad passenger (who was, in fact, without fault himself), for a personal injury, against a defendant whose negligence directly and proximately concurred with the negligence of the railroad company in producing the injury, the concurrent negligence of the company cannot be imputed to the plaintiff so as to charge him with contributing to his own injury.

Error to the Superior Court of Cincinnati.

Upon the trial of the case to a jury, issue having been joined by the defendants severally, and after the plaintiff had introduced all his testimony, the action was dismissed as to the railroad company on its motion, the court being of opinion that the testimony did not tend to prove a cause of action against it; thereupon further testimony was offered upon the issue between the plaintiff and the Transfer Company, and the following bill of exceptions was taken by the defendant, now plaintiff in

error:

"Be it remembered, that at the trial of this cause at the May term, A. D. 1876, Superior Court of the City of Cincinnati, it appeared from the testimony that the plaintiff, at the time of the happening of the injury complained of, was a passenger on a car owned and operated by the Cincinnati Consolidated Street Railroad Company, and there was evidence tendiug to show that the injury to the plaintiff was caused solely by the negligence of the Covington Transfer Company; and the defendant, the Covington Transfer Company, having offered evidence tending to prove that the injury to the plaintiff was caused solely by the negligence of the Cincinnati Consolidated Street Railroad Company, and also evidence tending to prove that the injury was caused by the joint negligence of the Covington Transfer Company and of the Cincinnati Consolidated Street Railroad Company, asked the court to charge the 'jury, that if they found from the testimony that the injury to the plaintiff was caused by the joint negligence of the Covington Transfer Company and of the Cincinnati Consolidated Street Railroad Company, then the Cincinnati Consolidated Street Railroad Company alone would be liable to the plaintiff for the damages caused by such injury, and their verdict must be in favor of the Covington Transfer Company, which charge the court refused to give, and charged the jury that if they found from the testimony that the injury to the plaintiff was caused by the joint negligence of the Covington Transfer Company and of the Cincinnati Consolidated Street Railroad Company, then both the Covington Transfer Company and the Cincinnati Consolidated Street Railroad

Company would be liable to the plaintiff for the damages resulting from said injury, and that the jury could render a verdict against the said The Covington Transfer Company, although the Cincinnati Consolidated Street Railroad Company had been dismissed from the action. To which refusal to give said charge, and to the charge as given, the defendant, The Covington Transfer Company, by its counsel, then and there excepted, and presented this, its bill of exceptions, in that behalf, and prayed the court that the same might be signed, sealed, allowed and ordered to be made a part of the record in this cause; which was done, accordingly at this the term of the trial, to wit: the May term, A. D. 1876.”

Verdict and judgment having been rendered in favor of plaintiff below against the Transfer Company, the latter prosecutes this proceeding to reverse the same on the ground of misdirection to the jury, as set forth in the bill of exceptions.

The original action was brought by Kelly against the Covington Transfer Company and the Consolidated Street Railroad Company, to recover damages for a personal injury. The cause of action was ti.us stated:

"Plaintiff states that before and at the time of the committing of the wrongs and injuries hereinafter complained of, the defendant, The Covington Transfer Company, a corporation duly created under the laws of Kentucky, and having a managing agent and place of business in the city of Cincinnati, Hamilton county, Ohio, was the owner of the certain wagon and horses hereinafafter referred to, and the said defendant. The Cincinnati Consolidated Street Railroad Company, a corporation duly created under the laws of Ohio, was the owner of the street railroad car hereinafter also referred to, and which was used by it to convey passengers in said city for certain hire and reward.

“Plaintiff says, that on the 8th day of August, 1874, he became and was a passenger in the said car of said street railroad company, to be safely carried therein over its road, for certain hire and reward, and he was then received in said car, as said passenger, by the said street railroad company, and for which he paid to it the customary and required fare.

"That on said 8th day of August, 1874, while being thus seated and conveyed in said car, which was then running along Third street, eastwardly, between Smith and Park streets, in said city of Cincinnati, the said defendant, The Covington Transfer Company, by its servants and agents, carelessly, negligently and unskillfully drove the said wagon belonging to it violently into the said street railroad car, and in the direction where the plaintiff sat therein as aforesaid, and the said defendant, The Cincinnati Consolidated Street Railroad Company, then and there, in disregard of its duty, did, by its servants and agents, carelessly, negligently and unskillfully conduct the running of said street railroad car, so that by carelessness, negligence, unskillfulness and default of said defendants, The Covington Transfer Company and The Cincinnati Consolidated Street Railroad Company, through its servants and agents as aforesaid, and without any fault, neglect or carelessness whatever on his part, the right hand of the plaintiff was very badly cut and bruised and the bones thereof fractured and broken, causing him very great pain and suffering, rendering him totally unfit to attend to his necessary business for a long period, involving him in great expense in endeavoring to cure the said injuries, having been under constant treatment in a hospital, and yet, notwithstanding, his said hand has continued to be hitherto so badly bruised and fractured

that particles of broken bones are frequently taken therefrom, and the hand is now entirely useless, and so crushed, its bones so fractured and ligaments thereof so lacerated, as to be, and the same is, rendered permanently injured and crippled, and so will remain during his life, and whereby, on account of the premises, he has sustained damages in the sum of $2,000.”

Dodds & Wilson, for plaintiff in error:

Long, Kramer & Kramer for defendant in error.
MCILVAINE, C. J.

The exact question presented by this record, as we understand the bill of exceptions, arises upon the fact assumed in the request to charge and in the charge as given to the jury, that the wrongful acts of the defendants below, the railroad company and the transfer company, were not only concurrent in point of time and place, but in such manner that the wrongful act of each was a direct and proximate course of the injury complained of by the plaintiff; and this being so, it matters not whether the act of each, without the concurrence of the other, would have produced the injury, or, that the negligence of neither would have caused it without such concurrence; so that upon general principles and reason both or either ought to make compensation therefor. The general rule undoubtedly is, that where damage is caused by the joint or concurrent wrongful acts of two or more persons, they may be prosecuted therefor jointly or severally. To this general rule of liability whether joint or several, there is an exception, however, based upon reasons as sound as is the rule itself, namely: that where the injured party, by his own negligence or wrongful act, contributes to his own injury, the law will not afford him a remedy against all or any of the persons whose wrongful acts, in connection with his own, produced the injury. But the case before us does not come within the exception above stated, for the reason that it is here admitted by the pleadings, that the plaintiff below was in fact without fault on his part. It is contended, however, by the plaintiff in error, that the plaintiff below was so identified with or related to the railroad company by the contract for carriage, that the fault of the carrier must be imputed to him as passenger.

The imputation thus contended for, however, is not based upon any alleged fault of the plaintiff below in entering into the contract for carriage with the railroad company; for there is not even a suggestion that the contract was one which a reasonably prudent man would not have made; but simply upon the ground that the plaintiff below was a passenger upon the car of the company at the time when an act of carelessness, contributing to his injury, was committed by one of the company's servants, namely: the driver of the car.

If the driver could, in any just sense, be regarded as the agent or servant of the passenger, or if the railroad company, whose servant the driver was, had been, under the contract, subject to the direction or control of the passenger, then, with some show of reason, it might be said that the passenger was responsible for the negligence of the driver.

But such was not the nature of the contract. The passenger was, it is true, entitled to a seat in the company's car; but was not entitled to direct or control the time or manner of its movement. That the company was bound to exercise the highest degree of care to the end that the passenger might be safely carried, is true; but it was not subject to the direction or control of the passenger, either as to employment of servants or as to to the manner in which the service should be performed. It seems to us,

therefore, that the negligence of the company or of its servants should not be imputed to the passenger, where such negligence of the company or its servants was the sole cause of the injury. Indeed, it seems as incredible to my mind that the right of a passenger to redress against a stranger for an injury, caused directly and

proximately by the latter's negligence, should be denied,

on the ground that the negligence of his carrier contributed to his injury, he being without fault himself, as it would be to hold such passenger responsible for the negligence of his carrier, whereby an injury was inflicted upon a stranger. And of the last proposition, it is enough to say that it is simply absurd.

While we acknowledge the high authority of cases holding views contrary to those above expressed (Thorogood v. Bryan, 8 Com. Bench, 115; Armstrong v. Lancashire Railway Co., 10 Exch. Law R. Series 47, and Lockhardt v. Lichtenthaler, 46 Pa. St. 151), we find, on the other hand, many cases of equally high standing holding, and, we think, with better reason, that the negligence of the carrying company cannot be imputed to a passenger who is rightfully on its train, and who is guilty personally of no fault or negligence, in an action by such passenger against another party, whose negligence has contributed directly to his injury. Chapınan v. New Haven R. R. Co., 19 N. Y. 341; Colegrove v. N. Y. & N. H. R. R. Co., 20 N. Y. 492; Bennett v. N. J. R. R. Cq., 36 N. J, 225; 1 Smith Lead. Cas. 450, 6 Am. Ed.; 43 Wis. 513; 14 Minn. 81; 11 Allen, 500; 59 N. H, 420.

We are also aware that by an almost unbroken line of decisions it is held that the negligence of a common carrier of goods, contributing to the injury of such goods while in its possession, is a good defense to an action by the owner of the goods against a third person whose negligence also contributed to the injury.

Whether these decisions conflict with the doctrine an

nounced in this case depends entirely on the question whether or not a distinction, on principle, can be made between cases of carriers of goods and carriers of passengers. That there is a marked distinction between the relations of the parties to these different contracts is quite certain. The common carrier of goods has actual possession of and absolute control over them, and is an insurrer against loss or damage, except when occasioned by the act of God or a public enemy; while the carrier of passengers is only bound to the exercise of care; so that, in case of injury to a passenger over whose conduct the carrier has no physical control, his own misconduct bars his remedy, whether the injury was caused by the concurring negligence of the carrier or the joint negligence of the carrier and others; but in the case of goods, where the thing carried is incapable of contributory negligence, the law requires its safety to be insured. Now it may be that public policy, in the interest of trade and commerce, will not permit the liability of the carrier, who has failed in his duty in relation to goods, to be shifted to another, either with or without the consent of the owner; and, therefore, it may be that the law, in such case, requires the owner to seek redress from the carrier alone. But, however this may be, we are unanimous in the opinion that for a personal injury to a passenger, who is himself without fault, occasioned by the joint and concurring negligence of the carrier and another person, there is no sound principle of law which precludes the injured party from seeking redress from both or either of the wrongdoers.

Judgment affirmed.

[This case will appear in 360. 8.]

RULES FOR CITATIONS.

Citations, if not sufficiently definite to point at once to the authority intended to be referred to, frequently cause loss of time and great vexation. The observance of a few rules would greatly tend to simplify them and sometimes give counsel the benefit of an authority which is lost for want of time or patience in the court to hunt it up if incorrectly given. The following rules, though by no means as full as could be given, will, if observed, it is believed, be useful:

1. In using abbreviations never use simply the initial letter. Thus B. and A. may refer to Barnewall and Adolphus, or Barnewall and Alderson; B. and B. to Ball and Beatty, or Broderip and Bingham; C. and M. to Carrington and Marshman, or Crompton and Meeson; M. and S. to Maule and Selwyn, or Moore and Scott; it is far better to use Barn. and Adol., Barn. and Ald, Ball and B., Brod. and Bing., Carr. and Marsh., Cromp. and Mees. Maule and S., Moore and S., etc. So in New York, "Barb." is the usual citation for Barbour's Reports, of the Supreme Court of that State, and in Arkansas "Barb." was, until within a few years, the usual citation for Barber's Reports of that State. So in New Jersey "Harr." was until recently the usual citation for Harrison's Reports of that State, and in Delaware "Harr." was, and still is, the usual citation for Harrington's Reports of that State. H. and M. in England is used for Hemming and Miller's Chancery Reports, and in Virginia for Hening and Munford; while they might be understood in England and Virginia, obviously neither should be used elsewhere. Always make the abbreviation long enough, and definite enough, to indicate clearly what it is intended to represent.

2. In citing a case from reports always give the name of the parties, plaintiff and defendant. If by mistake a wrong volume or page be given by counsel or the printer, the authority may generally be easily found from the table of cases in the English, the United States, or a State, digest.

3. If examining a report of any country or State other than your own, remember reports may be differently cited by the courts of the former than by those of your State, and if a citation puzzles you, endeavor to find the method of citation by the courts of the forum.

Thus in Upper Canada, the Queen's Bench Reports of that Province are cited as U. C. R. (Upper Canada Reports), as the Queen's Bench is the court (the highest court of original jurisdiction), and the Common Pleas as C. P.

If you were to so cite them in New York, no idea of the report intended would be conveyed, but to make your citation intelligent and definite to a judge of that State, you would cite them thus: "U. C. Q. B.," "U. C. Com. Pl.," "Grant's U. C.. Chy.," etc. In England, Coke's Reports are, by common consent, spoken of as the reports of that country and are frequently

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