MARION, O., Feb. 6, 1882. EDITORS OHIO LAW JOURNAL:

In the discussion of the question-" Right of Counsel to represent Prosecuting Witness," &c., the writers seem to have overlooked the fact that Sec. 7245 was repealed by 77 O. L. 59, March 11, 1880.

Please call the attention of the parties interested to the change.

Very Truly,

A SUBSCRIBER.

A NEW METHOD OF ADVANCING CASES ON THE DOCKET.

The Clerk of the Supreme Court of Ohio, a few weeks ago, received a letter from a suffering litigaħt in an adjoining county which we give below verbatim et literatim, as it displays some fine points of diplomacy, and shows how highly some members of the profession are held by their neighbors. The writer is neither a party or attorney in the case mentioned.

KNOX COUNTY, O., Dec. 27, 1881.

you

Dwight Crowel Clerk of Supreme court I understand that you are making out a new Docket of new cases of Supreme court and arrangement of cases now in your arrangement of cases if you can arrange the Docket so as to place the case of A D Shopley Versus Lewis Crichfield in such a shaps so that it can be reached before next September 1882 this a county case in which the Public ar not safe to travel a damaged and impassable road annother reason that you should put the case where it can be reached Soon the people and Commissioners of Knox Co will petition the Supreme Court for immediate action as Important an urgent now I will say and am not going to nor think you doing more than your duty I will give you Five Dollars by mail if will save me the trouble of petitioning your court fer a Soon hearing of case and we have the most Devlish man in the state an inveiglier and Bulldozer now you seen the trouble we had to make Lewis Crichfield to make out his briefs now he has not nor will commence his reprint his arguments till forced in to the matter I tell you or court gives him and threatones him I mean this if you can arrange your Docket so that we can can have the Docket and case through by next Autumn and send Crechfield & Graham Attorneys at law of Mt Vernon a note giving them so many days to Complete their arguments into writing I will present you with Five Dollars as soon as you arrange your Docket force them to proceed this nothing mork than the law requires also this communication will never reveeiled to no person in the world you may write to Crechfield & Graham Attorneys fer Lewis Crichfield Our Attorneys are Devin & Culberton

1. It is error to reverse or modify a judgment without having the parties before the court affected by such reversal or modification.

2. Where several defendants are sought to be charged upon the same demand, and the defense set up by one operates for the benefit of all, it is error to reverse the judgment as to the answering defendant and leave it standing in full force against the others.

3. The lessee in a coal lease, by its terms, purchased all the coal on the demised premises, and agreed, with all reasonable dispatch, to mine and remove the coal, and on the first days of January and July of every year to pay a specified sum per ton for all the coal that may have been mined and removed; also, that if coal was found sufficient to render the same practicable, to mine not less than thirteen thousand tons annually, or on default thereof to pay for said quantity. It was further stipulated that in the event that the payments thus required to be made should be more than sufficient to pay for the coal mined in any year, the "surplus payments were to apply on any future year's mining that might be in execss of said quantity. Held:

1. That the quantity of coal was to be ascertained and paid for in the inode prescribed by the lease.

2. That in an action to recover an annual payment for thirteen thousand tons, an averment in the answer that the "surplus payments" made in pursuance of the lease were more than sufficient to pay for the unmined coal remaining on the premises, constitutes no defense.

Error to the District Court of Mahoning County.

The original action was brought in behalf of the heirs of Jacob Wise, Elizabeth Stambaugh et al; on an agreement described as a lease, entered into between them and David Tod on the 1st day of October, 1861, to collect two installments of rent of $1,625.00 each, one due on the 1st of January, 1874, and the other on the 1st of July, of the same year.

By the terms of the lease the lessors granted, leased and sold to Tod, his heirs and assigns, all the mineral coal in and under a certain tract of land in the lease described, and the right to enter upon the premises to freely mine and remove the same. On the part of Tod, the lease contained the following stipulation:

"And as a further consideration for said grant the said Tod agrees to go forward with all reasonable dispatch to mine and remove said stone coal and keep an accurate account thereof, and at the end of each six months, to wit: on the first days of January and July of every year to pay to each of the said parties one-thirteenth part of the sum of twenty-five cents per ton of 2,100 pounds, for all the coal that may have been mined and removed therefrom; and if

found in quality and quantity sufficient to render the same practicable, after the year 1862, to mine not less than thirteen thousand tons annu

ally, or on default thereof pay for said quantity; in which event the surplus payments are to apply on any future years mining that may be in excess of said quantity."

This lease was assigned by Tod to the Girard Iron Company by whom, in September 1869, it was assigned to Morris, Ward & Brown.

The said assignees respectively assumed to perform all the terms and agreements of the lease and save their assignors harmless on ac

count thereof.

Tod's executors as well as the said assignees were made defendants to the petition; and Tod's executors by way of cross-petition prayed that the said indemnity be enforced against said assignees respectively and that they be required to discharge his liability to the plaintiffs.

The answer of Morris, Ward & Brown admits their liability under the lease, but avers payment of all installments due prior to January 1, 1874, and as to the installments sued for, the answer sets up the following matter as their defense:

"These defendants admit that said two payments of $1,625 each, to recover which this suit has been brought, have not been paid, but they deny that they are due and payable under said lease, or that any sum is or ever can be due plaintiffs from any of the defendants, under said lease, because they say that there has been paid by said Tod, said Girard Iron Company and these defendants under said lease, about the sum of $15,000 above paying for all coal mined at the rate of twenty-five cents per ton, that there is not sufficient minable coal on said premises to repay these defendants at the price stip ulated, said sum which was paid as payment in advance for coal to be mined, and so they aver that they have in fact paid for all coal mined and that can be mined from said premises and say that their said lessees have the right to continue the proper and diligent mining of what coal remains to be mined without further payment."

To this defense the plaintiffs and Tod's executors respectively demurred. The demurrer was sustained, and judgment rendered in favor of the plaintiffs, against all of the defendants which was to be satisfied by execution first against Morris, Ward & Brown, and on failure. to obtain satisfaction from them, by execution. against the Girard Iron Company, and on failure to obtain satisfaction by the execution last named, the executors of Tod were required to pay said judgment from the assets in their hands. In case Tod's executors should pay the judgment they were subrogated to the rights of the plaintiffs in the judgment against the other defendants.

On petition in error filed in the district court by Morris, Ward & Brown to which the original plaintiffs alone were made parties defendant, the

judgment as to the said plaintiffs in error was reversed.

And on a subsequent petition in error filed in to which all the other parties interested were the same court, by the same plaintiffs in error made defendants, a similar judgment of reversal was rendered, the court refusing to reverse said judgment except as it affected the said plaintiffs in error.

The present petition in error is prosecuted by Tod's executors to which all the other parties in interest are made defendants, to obtain the reversal or modification of the judgment of the district court.

The errors assigned are in substance that the district court reversed the judgment of the court of common pleas instead of affirming the same; also that the district court reversed the judgment as to Morris, Ward & Brown leaving it in force as against Tod's executors and the Girard Iron Company.

Geo. M. Tuttle, B. F. Hoffman and T. W. Sanderson for plaintiff in error.

D. M. Wilson for defendant in error.

WHITE, J.

The judgment of the district court is manifestly erroneous. In the first place it was error to reserve or modify the judgment of the court of common pleas without having before the court the parties affected by such reversal or modification. In the next place, after the filing of the second petition in error and all the parties interested were before the court, it was error to reverse the judgment as to Morris, Ward & Brown, and leave it standing in full force against Tod's executors, and the Girard Iron Company.

If the answer of Morris, Ward & Brown constituted a defense to the action for them it operated equally as a defense for their co-defendants.

The cause was in equity and the same liability was sought to be enforced against all the defendants, but, inter se se, they were chargeable in the inverse order in which they became assignees of the lease and assumed to perform its stipulations. On the cross-petition of Tod's executors and the undisputed facts, Morris, Ward & Brown were bound to fulfill the terms of the lease and save the executors harmless on account thereof. the judgment of the district court, Morris, Ward & Brown were relieved from this liability and the performance of the terms of lease charged upon Tod's executors and the Girard Iron Company.

By

If the court of common pleas was right in sustaining the demurrer to the answer, the judg ment of that court ought not to have been disturbed. The only remaining question therefore is, whether the answer constituted a defense. We think it did not.

By the terms of the lease the lessee purchased all the coal on the demised premises. The quantity of coal was to be ascertained and paid for in the mode prescribed in the lease. It is

stipulated in the lease that Tod is to go forward, with all reasonable dispatch to mine and remove the coal, and on the first days of January and July of every year to pay twenty-five cents per ton for all the coal that may have been mined and removed; and if found in quality and quantity sufficient to render the same practicable, after the year 1862, to mine not less than thirteen thousand tons annually, or on default thereof pay for said quantity. It is further stipulated that in the event that the payment thus required to be made should be more than sufficient to pay for the coal mined in any year, the "surplus payments" are to apply on any future year's mining that may be in excess of said quantity. By this stipulation the surplus payments are to be applied in payment of the excess of coal mined annually over and above the thirteen thousand tons. The claim set up in the answer is that such payments are to be applied to pay for the unmined coal, without reference to when mined, if mined at all.

This claim is not in accordance with the agrecment and cannot be supported. The demurrers to the answer were properly sustained by the court of common pleas, and the district court erred in holding otherwise. The judgment of the court last named is therefore reversed and that of the common pleas affirmed. [This case will appear in 37 O. S.]

SUPREME COURT OF OHIO.

DARLING V. YOUNKER.

JANUARY 31, 1882.

1. Where an action is brought against an agent who, having received money to be carried to his principal, claims that the money is lost, the burden is on the agent to show there was no breach of duty on his part; and this is to be determined upon consideration of all the circumstances; and, ordinarily, the question is one of mixed law and fact and not merely of law.

2. Y. was employed by D. to carry a sum of money, consisting in part of four $500 bank bills, to the town of C., there pay part of it to S. and carry and deliver the balance to him (D.), owner of the money. Y. went to C. by passenger train at night, riding in the same seat with F., an acquaintance, the car being half filled with passengers. While on the way Y., at the request of F., let the latter have one of the $500 bills in exchange for smaller bills. On arriving at C. the package of money was taken by Y. to a store in charge of B., and handed to B., who at the request of Y. locked it in his safe, the safe being one in which D. usually deposited his money. In the morning when the money was taken from the safe and counted, another $500 bill was missing. Y. paid S. as directed, and on the same day gave the receipt of S. and the balance of the money to D. and stated to him the above facts. D. accepted the receipt and money, but brought suit against Y. for $500, basing his right to recover on the ground of negligence: Held, that on the facts stated, the court could not say as matter of law that Y. was liable.

Error to the District Court of Coshocton County.

Spangler & Pomerene, for plaintiff in error. Edwards on Bailments, 91, 114, 287, 304, 321, 327; Story on Bailments, §§ 15, 186, 188, 232, 413; 1 Parsons on Con. 606*; Shear. & Red. on Neg. $$ 12, 23; Angell on Car. §§ 48, 52, 62; Smith v. Stewart, 5 Ind. 220; Wheelock v.

Wheelwright, 5 Mass. 104; Canah v. Hall, 23 Wend. 462; Raynolds v. Shuer, 5 Cowen, 323; Lichtenheim v. Railroad Co., 11 Cush. 70; Garnett v. Williams, 5 Barn. & Al. 53.

Nicholas & James, for defendant in error.

20 Ohio, 69; Shear & Red. on Neg. §§ 8, 11, 13, 20; 24 Ohio St. 639; 1 Parsons on Con. 606,* 634; 19 Conn. 566; 40 Mo. 151; 59 Pa. St. 259; 48 Ill. 415; 105 Mass. 342; 32 Wis. 531; 38 N. 541; Angell on Car. $ 12, 431, 433; 1 Smith's Y. 455; Story's Agency, $236; 3 Phil. Ev. 539, Lead. Cas. 333; 6 Hill (N. Y.) 588; 3 Ad. & El. 106; 20 Eng. L. & Eq. 452; 2 Green Ev. § 642; Story on Bail. §§ 188; 410, 413, 454; 11 Cush. 70; 99 Mass. 605; 6 Barr. 417; 5 Serg. & R. 179; 10

Watts. 335.

OKEY, C. J.

The plaintiff (Darling) and the defendant (Younker) were neighbors living in Coshocton county, about fourteen miles from the town of Coshocton. They had known each other from boyhood, and both were dealers in live stock: The plaintiff had, in the hands of a firm engaged ir selling live stock at Pittsburgh, the proceeds of the sale of a lot of hogs which he had shipped to that city for sale; and he also had a lot of hogs at Warsaw, in Coshocton county, which he wanted to send to Pittsburg for sale by the same firm. Being unable to leave home by reason of sickness in his family, he employed the defendant to drive the hogs from Warsaw to Coshocton, take them from Coshocton to Pittsburg by car, deliver them to the firm referred to for sale, receive from the firm the proceeds of the sale of both lots, bring such proceeds to Coshocton, there pay Stewart $1200, and then carry and deliver to him, the plaintiff, the bal

ance.

The hogs were shipped in a car at Coshocton, on December 53, 1874, the defendant taking passage in the caboose. Finkbone, of Fairfield county, also a dealer in live stock, had a lot of hogs in cars of the same train, which he was taking to Pittsburgh for sale, and he and the defendant became acquainted in the caboose and stopped at the same hotel at Pittsburgh. The hogs taken by Finkbone, as well as those taken by the defendant, were sold the next day (December 24.) In the afternoon of the same day, a member of the firm which sold the stock went with the defendant to one of the Pittsburgh banks, where the sum of $3,100.54, being the whole amount due to the plaintiff, was paid to the defendant. The money consisted of four bank bills, each of $500, and other bills of smaller denomination, and fifty-four cents in change. The defendant folded the bills in a piece of newspaper, and placed the roll in a pocket in the inside of his vest, and left the bank. Soon afterward, the amount due to Finkbone for his hogs, being about $3,000, was paid to him at the same bank, but he was unable to obtain at the bank any bill of a larger denomination than $50.

The defendant and Finkbone took passage on that evening at Pittsburgh, in the same passen

ger car, and came together as far as Coshocton, arriving there abcut ten o'clock at night. The defendant stopped at Coshocton, and Finkbone remained in the car until he reached Kirkeville, which is near his residence. On the way from Pittsburgh to Coshocton, the defendant and Finkbone sat together, conversing about the live stock business. Finkbone informed the defendant that he had tried to get larger bills, but failed. The defendant asked him if it would be an accommodation if he would let him have one $500 bill, and Finkbone said it would. About half the seats in the car were occupied, chiefly the middle seats. Fink bone took out his money, but at the suggestion of the defendant, they went to the front part of the car, to get as far as possible from the other passengers, and have the benefit of the light, and sat down together in one of the front seats. Finkbone then took from his package ten $50 notes, and handed them to the defendant, who took from the package in his possession one of the $500 notes, handed it to Finkbone, put the ten bills in the place of the bill he had given to Finkbone, and restored the package to his inside vest pocket, taking care that there should be no mistake in making the exchange, and that none of the bills should be lost. This was about an hour before the train arrived at Coshocton.

The defendant arriving at Coshocton, as already stated, in the night, it became necessary for him to remain at a hotel till morning. The banks were closed of course, and it does not appear whether there was or was not a safe in the hotel where he stopped. There was, however, a hardware store in Coshocton, owned by a firm in which a brother of the plaintiff was a partner, and the defendant was then aware of the fact that the plaintiff was in the habit of depositing considerable sums of money in the safe of that firm, which they kept in the store. The defendant went directly from the depot to the store, which he found still open, Bonnett, a nephew of the plaintiff, and employee of the firm, being there alone. The defendant turned and was about to leave the store, when Bonnett inquired what was wanted, and the defendant informed him that he had a package of money belonging to the plaintiff, stating the amount, which he desired to have placed in the safe. Bonnett said he could attend to it, and took the package and locked it in the safe, and the defendant then went to his hotel, leaving Bonnett in the store. From the time the defendant received the money at the bank until he handed it to Bonnett in the store, it had not been out of his pocket, except when he exchanged the bills, as already explained, on the train.

The next morning (December 25), the defendant went to the hardware store, and Bonnett, at his request, opened the safe and took therefrom the package of money and handed it to him. On counting the money, in the presence of Bonnett and the plaintiff's brother, it was ascertained that one of the $500 bills was missing, the balance of the money, including two $500 bills, be

ing there. The defendant paid to Stewart $1200, in accordance with the instruction already mentioned, and on the same day (December 25), delivered to the plaintiff Stewart's receipt and $1,400,54, in money, and informed the plaintiff of all the facts here stated, including the exchange of bills, the deposit in the safe, and the loss of the $500 note.

Such, in substance, is the testimony of Younker as delivered in the Court of Common Pleas of Coshocton County, on the trial of an action brought by Darling against him to recover the sum of five hundred dollars. His evidence was corroborated by the testimony of Finkbone, and the jury, believing the defendant's story, found a verdict in his favor; the court, after overruling a motion for a new trial, rendered a judgment on the verdict; the district court affirmed the judgment, and this petition in error was filed to reverse both judgments.

During the trial, evidence was also offered to show that the defendant was confused at the time the money was counted in the store; that he then stated that in the money paid to him at the bank there were three $500 bills; and that he also stated that he did not have the money out of his pocket from the time he placed it there in the bank until he took it out in the hardware store. But an explanation as to these statements was furnished, showing that they, as well as the confusion, were caused by the defendant's excitement on discovering the loss, and the statements were corrected by him on the same day. Furthermore, it was shown that he had said that he would pay the amount so lost to the plaintiff, but that he must have the matter investigated; and when the plaintiff brought suit, the defendant withdrew all proposals looking to a settlement. There was also evidence tending to show that the exchange of money on the cars was not an unusual occurrence.

The foregoing embraces all the evidence, except with respect to two or three matters which seem to be wholly unimportant. What the facts in relation to the missing bill really are, may never be known. Whether the note was dropped in the cars, or whether somebody was dishonest, are matters of conjecture. The defendant is quite certain no mistake was made at the bank. In giving to the testimony a construction consistent with that honesty of the defendant which the plaintiff, with an acquaintance of forty years, believed he really possessed, we are not prepared to say the jury erred.

If, on learning that the defendant had taken one of the nctes from the package, the plaintiff had treated the act as a conversion, and brought suit to recover the whole amount so received by the defendant at the bank, a different question might have been presented. It was the duty of the defendant to receive the money from the commission merchants at Pittsburgh, carry it to Coshocton, there pay to Stewart $1,200, and take the balance of the money to the plaintiff and deliver it to him. As Bigelow, C. J., says in Kent v. Bornstein, 12 Allen, 342, "any act or dealing

with the money beyond this was outside of the scope of his employment. He had no authority to enter into any contract concerning the money in his hands, or to exchange it for other money with third persons." And see Phillpott v. Kelley, 3 Ad. & El. 106; Clendon v. Dinneford, 5 C. & P. 13; Greenwald v. Metcalf, 28 Iowa, 362; Edwards on Bailments, $$ 67, 97. But we do not find it necessary to decide as to the law that would have been applicable if the plaintiff had taken the course indicated. On being informed of the loss, the plaintiff accepted as cash the receipt of Stewart and the balance of the money in the defendants hands, making $2,600.54, which he knew included the bills given by Finkbone in exchange for one of the $500 bills, and the plaintiff brought suit against the defendant for the missing $500 bill. This, therefore, was a complete ratification by the plaintiff of the act of the defendant to that extent. Ewell's Evans on Agency, 94.

No action could be maintained for the conversion of the missing bill, nor as for money had and received, the jury having found that there was no misappropriation of the bill by the defendant, and the verdict in that respect not appearing to be wrong. Sturgis v. Keith, 57 Ill. 451, 11 Am. Rep. 28; Parry v. Roberts, 3 Ad. & El. 113. But where an agent is guilty of negligence, whereby the money of his principal is lost, an action may be maintained on that ground. And here the question is whether we can say as matter of law that the acts of the defendant, in making the exchange in the car and the deposit in the safe, afford a ground of recovery, as to the missing $500 bill, because of the defendants negligence, and without regard to the question of actual good or bad faith. But as to the deposit in the safe, we can see in it nothing objectionable, under the circumstances. It was the safe in which the plaintiff made his own de posits of money, and the safe was in charge of the brother and nephew of the plaintiff. deed, the plaintiff made no complaint that such deposit had been made. The real question, there fore, is as to the alleged negligence in making such unauthorized exchange of money in the

cars.

In

An agent is not the insurer for the safe delivery of money placed in his care to carry to his principal. No doubt, however, where he claims such money entrusted to him is lost, the burden is upon him, whether the service be for or without reward (Anderson v. Foresman, Wright, 598; Ewell's Evans on Agency, 327), to show that the loss was not occasioned by want of that care, on his part, which men of ordinary prudence observe when clothed with such a trust. The real question, in every case where negligence is alleged, is whether there has been a breach of duty, and that is to be determined from a consideration of all the facts. But here the question. whether the acts of the defendant amounted to such negligence as would afford ground of recovery, was a question of fact and not law. Cases can be found in which the question of negligence

has been determined as one of law. See 28 Ohio St. 340; 35 Ohio St. 627. See, however, 13 Ohio St. 71, 72; 35 Ohio St. 57; Pierce on Railroads (ed. of 1881) 312, 314, et seq. But where the facts are in dispute, or the question is to be determined by inference from facts proved, the question is necessarily one of fact; nor can it be a question of law in any case if reasonable men, unaffected by bias or prejudice, might disagree concerning the presence or absence of due care. Judgment affirmed.

[This case will appear in 37 0. S.]

SUPREME COURT OF OHIO.

I. T. MCLAIN

V.

B. W. SIMINGTON.

JANUARY 31, 1882.

1. The undertaking for attachment provided by section 193 of the Code of Civil Procedure (2 S. & C. 1004), is not a specialty, and the want of a seal does not affect its validity.

2. Where the name of the surety to such undertaking does not appear in the body of the instrument, but the language used is, "We, A. B. and hereby undertake &c,' the omission of such name does not affect the validity of the undertaking or the obligation of the surety. Language of opinion in Stephens v. Allmen et al. 19 Ohio St. 485, qualified.

Error to the District Court of Union County. The defendant in error, Simington, brought an action in the Court of Common Pleas of Morrow County, against McLain, plaintiff in error, for the recovery of money only, and obtained an order of attachment which was levied upon certain property belonging to McLain. The undertaking was given as follows:

Whereas, B. W. Simington has commenced a civil action against I. T. McLain in the Court of Common Pleas, within and for the County of Morrow, State of Ohio, to recover the sum of eighteen hundred dollars, with interest thereon, from the 6th day of July, A. D. 1876.

And whereas, the said B. W. Simington has applied to the clerk of said court, by filing the necessary affidavit for an order of attachment to be issued in said action, against the said I. T.

McLain.