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The defendant in error Katherine George having failed to sustain by any degree of burden the proof that the Standard Sanitary Manufacturing Company authorized Mr. George to secure the execution of the mortgage deed by duress or coercion, or that it had notice or knowledge that its execution had been so secured, and the undisputed proof being that it had extended credit on the strength of such mortgage and had altered its position to its prejudice and to the advantage of the Maskell-George Company, the doctrine of estoppel will prevent Mrs. George from now asserting that her act was involuntary. The judgment will be reversed, and a decree of foreclosure entered.

Judgment reversed.

MARSHALL, C. J., and DAY, KINKADE, JONES, and MATTHIAS, JJ., concur. ALLEN, J., concurs in the syllabus but not in the judgment.

On Rehearing.

PER CURIAM. Upon application for rehearing it was made to appear, by recourse to the bill of exceptions allowed by the court of common pleas, that the testimony appearing as the testimony of Stillman George of that which he related to his wife, in the bill of exceptions allowed by the Court of Appeals, "Well,' he says, 'you know that those homes are in the statement, and that you mailed that statement through the mails, and that you are criminally liable, and it's up to you to get those mortgages or suffer the consequences,'" in fact was his testimony of the conversation between himself and Mr. Moeller, and that such testimony is located in a wrong association in the bill of exceptions here, by reason of the fact that such record was made by reading from the bill of exceptions allowed in the court of common pleas, and for some reason the reading was not consecutive.

The statement in the opinion that Mr. George nowhere testified that Mr. Moeller threatened him with criminal prosecution is therefore erroneous. This correction, however, does not warrant a different judgment, since the evidence of Mr. George, plus such inference, if any, as may be drawn from the fact of the placing of the financial statements with his attorney and the attorney of Mrs. George, at her request, as trustee for all parties, does not, in the face of the other evidence contained in the record, amount to clear and convincing proof that a threat was in fact made by the Standard Sanitary Manufacturing Company; nor does it appear by that degree of proof that Mrs. George was under duress at the time she executed this particular mortgage, in the face of the evidence in the record that this mortgage was

executed after the termination of the trust, and after the Standard Sanitary Manufacturing Company had surrendered all dominion over the financial statements.

Former judgment adhered to.

MARSHALL, C. J., and DAY, KINKADE, ROBINSON, JONES, and MATTHIAS, JJ.,

concur.

BOYER, Superintendent of the Stark County
Workhouse, v. STATE ex rel. HALY.
BURTON. (No. 20937.)

Supreme Court of Ohio. May 9, 1928.

(Syllabus by the Court.)

Fines 13-Insolvent Debtor's Act held not applicable to persons sentenced to workhouse for misdemeanor until fine is paid or prisoner otherwise discharged; prisoner sentenced to workhouse for misdemeanor until payment of fine, "or otherwise discharged," might be discharged by pardon, parole, or credit on fine (Gen. Code, §§ 11150, 13717–13719).

The Insolvent Debtor's Act (section 11150, General Code) does not apply to a person convicted of a misdemeanor and sentenced to pay workhouse "until such fine and costs shall be paid or the prisoner be otherwise discharged according to law," since that section specially excepts a case in which the judgment requires imprisonment until the fine, penalty, and costs are paid. Such prisoner might be "otherwise discharged according to law," by pardon, parole, or credit upon said fine and costs, as provided by law, until the amount was so paid.

a fine and costs and to stand committed to a

Error to Court of Appeals, Stark County.

Mandamus by the State, on the relation of Edgar M. Halyburton, against John M. Boyer, Superintendent of the Stark County Workhouse. Judgment for plaintiff in Court of Appeals, and defendant brings error. Reversed. [By Editorial Staff.]

The defendant in error, relator in the court below, was charged with possessing intoxicating liquor, contrary to the statutes of Ohio. He was found guilty by the probate court of Huron county, and sentenced by the judge thereof to pay a fine of $500 and costs, and was by said court committed to the Stark county workhouse until such fine and costs should be paid, or "until he is otherwise legally discharged."

Defendant in error was, in compliance with the order and sentence, confined in the Stark county workhouse in default of the payment of the fine and costs, for a period of more than 60 days. After 60 days had elapsed, the defendant in error, under the Insolvent Debtor's Act of Ohio, sections 11146 to 11180, General Code, was declared to be insolvent by the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(162 N.E.)

commissioner of insolvents of Stark county, Ohio, and said commissioner ordered in writing the release of the defendant in error, and issued a certificate finding him insolvent and

ordering his release. The superintendent of the Stark county workhouse refused to honor the order and certificate of the commissioner of insolvency, whereupon this action in mandamus was brought to compel the performance of the duty on the part of the superintendent of the workhouse of releasing the defendant in error from further imprisonment. The action was brought as an original one in the Court of Appeals, and the plaintiff in error, defendant below, filed a general demurrer to the petition of the relator, the defendant in error in this cause. The Court of Appeals of Stark county, as shown by the journal entry, page 4 of the record, overruled the demurrer, and, the plaintiff in error not caring to further plead, a peremptory writ of mandamus was issued; and thereupon the defendant in error was ordered released from the workhouse.

This proceeding in error was then brought on the part of the plaintiff in error to reverse the action of the Court of Appeals.

Henry W. Harter, Jr., Pros. Atty., and H. Clifton Graybill, both of Canton, for plaintiff in error.

"Sec. 13717. When a fine is the whole or a part of a sentence, the court or magistrate may order that the person sentenced remain imprisoned in jail until such fine and costs are paid, discharged, provided that the person so imor secured to be paid, or he is otherwise legally prisoned shall receive credit upon such fine and costs at the rate of one dollar and a half per day for each day's imprisonment.

"Sec. 13718. When a magistrate or court renders judgment for a fine, an execution may issue for such judgment and the costs of prosecution, to be levied on the property, or, in default thereof, upon the body of the defendant. The officer holding such writ may arrest such defendant in any county and commit him to jail of the county in which such writ issued, until such fine and costs are paid, or secured to be paid, or he is otherwise legally discharged.

"Sec. 13719. An execution, as provided in the next preceding section, may issue to the sheriff of any county in which the defendant resides, is found or has property, and the sheriff shall execute the writ. If the defendant is taken, the sheriff shall commit him to the jail of the county in which the writ issued, and deliver a certified copy of the writ to the sheriff of such county, who shall detain the offender until he is discharged as provided in such section."

From the foregoing sections it is deducible that, when a person is fined and execution is issued against his body for the nonpayment of the fine, and he is imprisoned in accordance Fisher, Leahy & Weintraub, of Canton, for with section 13718, General Code, then he defendant in error.

DAY, J. It is conceded that the Stark county workhouse was built and is controlled because of a special act of the Legislature, and may be regarded as a single county workhouse in contradistinction to a municipal workhouse, and that therefore the same is not within the exception under section 11150, General Code in reference to "persons confined in workhouses established by municipal corporations," but that the Stark county workhouse comes within the general provisions of such section, entitling a person who is imprisoned under process for a fine, penalty, or costs in a criminal proceeding to the benefit of the Insolvent Debtor's Act, "unless the judgment in the case requires imprisonment till the fine, penalty, or costs, be paid." The inquiry in the present case must therefore narrow itself to the point whether, when the judgment requires imprisonment until the fine and costs be paid, it deprives the prisoner of the benefit of the Insolvent Debtor's Act. The court sentencing the accused could have sent him to the jail of Huron county, but it also had power to send him to a workhouse of some other county, if there was none in Huron county.

Sections 13717, 13718, and 13719, General Code, are pertinent to the discussion being of a general nature and applicable to a workhouse as well as a jail, where a prisoner may be sent to a workhouse instead of a jail, and the same provide as follows:

may only be imprisoned "until such fine and costs are paid, or secured to be paid, or he is otherwise legally discharged."

What is the meaning of the expression, "Or he is otherwise legally discharged?" It may be by executive pardon, or by serving sufficient time to receive credit at the rate of one dollar and a half per day for each day's imprisonment (section 13717, General Code); but does the provision of section 11150, General Code, "unless the judgment in the case requires imprisonment till the fine, penalty, or costs, be paid," deprive the prisoner of a legal discharge under the Insolvent Debtor's Act?

Fines and penalties imposed upon defendants for violation of state laws are not debts within the meaning of the constitutional inhibition for imprisonment for debts, and therefore a defendant can be imprisoned for nonpayment thereof. They are not obligations incurred by contract inter partes, but are the result of being members of the social compact or body politic.

Therefore we think it is well settled that commitment to jail in default of payment of fine and costs is not imprisonment for debt; consequently, a fine is not a debt, and, unless there is some specific statutory provision which inures to the benefit of the relator, the statutes relative to insolvent debtors do not apply.

There are numerous holdings that commitment to jail in default of payment of fine and costs is not imprisonment for debt, nor

is a person so committed sentenced to a term in prison. Carr v. State, 106 Ala. 35, 17 So. 350, 34 L. R. A. 651, 54 Am. St. Rep. 17; State v. Coal Co., 130 Tenn. 275, 170 S. W. 56, L. R. A. 1915B, 647; 21 R. C. L. 212; 25 Corpus Juris, 1157 and 1159; 12 Corpus Juris, 940, and cases cited in footnote 31; Lee v. State, 75 Ala. 29; State v. Mace, 5 Md. 337; State v. Cannady, 78 N. C. 539; Dixon v. State, 2 Tex. 481; Morgan v. State, 47 Ala. 34; Thompson v. State, 16 Ind. 516; McCool v. State, 23 Ind. 127; Mosley v. Gallatin, 10 Lea (78 Tenn.) 494; Ex parte Dig, 86 Miss. 597, 38 So. 730; Sothman v. State, 66 Neb. 302, 92 N. W. 303; In the Matter of Beall, 26 Ohio St. 195.

In view of the fact that the relator must rely for relief upon the application of section 11150, General Code, it is necessary to consider the same in detail. The insolvency statutes had their beginning in 29 Ohio Laws, 329, but at the time of their enactment they did not apply to persons who were imprisoned for a fine, penalty, or costs in criminal proceedings. This feature was first incorporated in the amendment of February 1, 1853, as found in 51 Ohio Laws, 323 (Swan & Critchfield, 708). The same provided as follows:

"That any person who may be imprisoned under any process issued from any of the courts of this state, for the collection of any fine or penalty imposed by virtue of any law of this state for the punishment of any offense, shall be entitled to all the benefit of the act entitled 'An act for the relief of Insolvent Debt ors,' and of any law amendatory thereof, in the same manner as though the amount of said fine, penalty or costs had been recovered against such person in any civil action: Provided, that the judgment defendant shall not be entitled to the benefit of this act until the expiration of sixty days' imprisonment on such judgment, unless the court rendering said judgment, or any judge thereof in vacation, shall otherwise direct."

In the codification of general laws into the Revised Statutes of 1880, this section appears to have been carried into the latter part of section 6361, Revised Statutes, wherein it was provided:

"And any person who may be imprisoned under any process for any fine, penalty, or costs, in any criminal proceeding, shall be entitled to the benefit of this section, at any time after he shall have been imprisoned under such process for the period of sixty days, unless the judgment in the case requires imprisonment till the fine, penalty, or costs, be paid; but this provision shall not extend to any person confined in any workhouse established by any municipal corporation."

It is to be noted that the section as carried under Revised Statutes, § 6361, made the provision that one could not be entitled to the benefit of the section even after the 60 days if "the judgment in the case requires im

prisonment until the fine, penalty, or costs, be paid," and a further limitation that the benefit of the insolvency section "shall not extend to any person confined in any workhouse established by any municipal corporation." A construction of this latter clause is not required by the present record, and we express no opinion thereon.

This section next appears in its present form in the General Code as section 11150. and, with slight change in phraseology, it is the same as it appeared in the Revised Statutes as section 6361. The chief point to be noted is that the section in its present form differs from its original form as found in the Act of February 1, 1853, 51 Ohio Laws, 323, in that there was no exception as to a judgment in a case requiring imprisonment until the fine, penalty, or costs, be paid. The decision in the case of Ex parte Scott, 19 Ohio St. 581, which is cited and relied upon by defendant in error, was decided at the December term, 1869, before the amendment as to a judgment in a case requiring imprisonment until the fine, penalty, or costs are paid. At the time of that decision there was no exception as to a judgment requiring imprisonment until the fine, penalty, or costs were paid.

It is argued that the provision of the sentence, "until such fine and costs are paid," or until "he is otherwise legally discharged," requires the release of the relator under this insolvency provision. It must be understood that there are several methods of effecting the legal discharge of the accused, to wit, pardon by the Governor, or parole, or release by credit upon the fine and costs at the rate of a dollar and a half per day, under section 13717, General Code. Any of these methods would have effected a legal discharge of the prisoner.

The construction claimed by the relator renders the language of section 11150, General Code, meaningless, wherein it is provided "unless the judgment in the case requires imprisonment till the fine, penalty, or costs, be paid." This exception of the very act under which the relator seeks to be discharged would have no effect, and in statutory construction all parts of a statute must be given meaning if the same can be done under the rules of legal construction. The trial court may, under section 13717, General Code, order that the person sentenced remain imprisoned until such fine and costs are paid, or secured to be paid, or he is otherwise legally discharged, provided that such person shall receive a credit upon his fine and costs at the rate of one dollar and a half per day for each day's imprisonment, in which event the accused serving such a sentence may legally be discharged by the provisions of such section (13717), or pardoned or paroled; but he is not entitled, by the very exception of section 11150, to the benefit of the discharge under

(162 N.E.)

such section (11150). However, in the event the magistrate should fine a person convicted without ordering him to be imprisoned until such fine and costs are paid, the accused might still, under section 13718, General Code, be taken into custody, upon execution, and confined in jail until such fine and costs are paid, or secured to be paid, or he is otherwise legally discharged as provided in section 13718, in which latter contingency, after serving 60 days, the accused would be entitled to the benefit of the Insolvency Act, and might secure his discharge under section 11150, General Code, the judgment not requiring his imprisonment until the fine, penalty, or costs are paid. Hence, not being within the excep tion, section 11150 applies, and the accused might be discharged thereunder.

Our attention is called to the case of Hamilton v. State, 78 Ohio St. 76, 84 N. E. 601, which decides that "it is the duty of the court in pronouncing judgment against the accused in a criminal case to pronounce the judgment provided by law," and a sentence not using the statutory language as to his discharge, "while not wholly void is incomplete and erroneous, and where such sentence has not been executed, it will be reversed." This point is not involved in the present record, although it may be noted that the judge writing the opinion said, at page 86 (84 N. E. 604): "Inasmuch as a person committed to the workhouse, in default of the payment of fine and costs, may no longer be released or discharged therefrom under the laws providing for the relief of insolvent debtors,"

-and cited section 1536-370, Revised Statutes, now section 4129, General Code.

The statutes relative to the various kinds of workhouses, municipal, district, county, and joint county, are the result of various enactments covering a period of years and some confusion has resulted. The Legisla ture might well abolish any distinction, and codify and simplify the laws relative thereto. By so doing, questions of constitutionality of statutes growing out of such classification might be eliminated. The present record, however, does not present such question.

If the words of section 11150, General Code, "unless the judgment in the case requires imprisonment till the fine, penalty, or costs, be paid," are to be eliminated from the statute in question, it is the duty of the Legislature to do so rather than for this court to reach that end by construction.

the rate of one dollar and a half per day, as provided in section 13717. It follows, therefore, that the relief prayed for must be denied, and the judgment of the Court of Appeals reversed, and final judgment rendered for plaintiff in error, and the petition in mandamus dismissed at the costs of the relator. Judgment reversed.

MARSHALL, C. J., and ALLEN, KINKADE, ROBINSON, and MATTHIAS, JJ., concur.

(119 Ohio St. 9) LASHURE v. EAST OHIO GAS CO. (No. 21011.)

Supreme Court of Ohio. May 31, 1928.

(Syllabus by Editorial Staff.)

1. Master and servant 330 (3)-Evidence, not showing workman acted under gas company's authority, failed to show master and servant relation necessary to make company liable for workman's acts.

Evidence that workman was

seen work

ing on sidewalk in vicinity of shut-off box be-
longing to gas company, but failing to show
that he was an employee of gas company or
acting with its authority, express or implied,
or in pursuance of its business, did not show
relation of master and servant essential to ren-
der gas company liable for act of workman.
2. Gas 141⁄2-Evidence held insufficient to
make gas company liable for injury to pedes-
trian by hole in sidewalk containing company's
shut-off box.

In action by pedestrian for injury when foot caught between hole in sidewalk and brick placed therein, evidence even if showing that hole was made to uncover shut-off box for benefit of gas company, and therefore probably made by its employee, was insufficient to charge gas company with liability for injury, where presence of brick contributing to injury was not accounted for.

Allen, J., dissenting.

Error to Court of Appeals, Cuyahoga County.

Action by Lydia Lashure against the East Ohio Gas Company and another. Judgment for defendant named was affirmed by the Court of Appeals, and plaintiff brings error. Affirmed.-[By Editorial Staff.]

Bernon, Mulligan, Keeley & Le Fever and Milton S. Grossman, all of Cleveland, for plaintiff in error.

Tolles, Hogsett & Ginn, of Cleveland, for defendant in error.

Being of opinion that the judgment in the present case provided for the imprisonment of the relator until the fine and costs were paid, or he be otherwise legally discharged, such judgment denies to him the benefit of PER CURIAM. The plaintiff below, Lydia section 11150, General Code, and his legal Lashure, claiming to have suffered an injury discharge may be effected only by pardon, as a result of stepping into a hole existing in parole, or credit upon his fine and costs at a concrete sidewalk on Lorain avenue, in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the city of Cleveland, brought suit against the city of Cleveland and the East Ohio Gas Company to recover damages for her alleged injury. She based her claim against the defendant the East Ohio Gas Company upon the charge that said company had dug or chipped a hole in the concrete sidewalk for the purpose of uncovering its shut-off box, and had left the hole or depression open and unguarded.

The trial court at the close of the plaintiff's evidence sustained a motion of the defendant the East Ohio Gas Company for a directed verdict in its favor. A like motion of the city was overruled, and the plaintiff thereupon dismissed her case against the city without prejudice. Judgment was rendered against the plaintiff and in favor of the East Ohio Gas Company, which was affirmed by the Court of Appeals.

Aside from the physical facts described in the record-being that the contractor who constructed the concrete sidewalk had thereby completely covered the shut-off box of the East Ohio Gas Company, and thereafter the portion of the sidewalk covering said shutoff box had been removed, leaving the hole or depression complained of-there is the evidence of a young man, employed in a nearby store, that some three or four weeks after the walk was completed he had seen a man in overalls using a crowbar upon the walk, jabbing up and down in the vicinity of such shut-off box, and that thereafter this man got into a truck with "The East Ohio Gas Company" printed on it, and having in it some tools, whereupon the driver of the truck "headed towards town." The witness testified that thereafter he observed a hole around the shut-off box in question, but stated that its appearance indicated that it had not been made with a crowbar.

The husband of the plaintiff, who accompanied her at the time of the alleged injury, testified that the hole or depression was about ten or twelve inches in diameter and four or five inches deep, and that there was a piece of paving brick in it. He further stated that the plaintiff's foot was caught between the brick and the side of the hole.

[1, 2] This is, in substance, all the evidence adduced which was relied upon to create a liability against the gas company. There being an entire lack of proof that the workman in question was an employee of the gas company, or acting with its authority, express or implied, or in pursuance of its business, the relation of master and servant, essential to render the former liable for the act of the latter and to warrant a recovery, is not shown. Even if the theory be indulged that the hole had been made for the purpose of uncovering the shut-off box and for the benefit of the company, and therefore probably made by its employee, the presence of the brick can

not be accounted for upon such theory, and the evidence indicates that but for the presence of the brick the injury would not have been caused.

The rule applicable to the situation thus presented has been so recently announced in a case so nearly parallel, Sobolovitz v. Lubric Oil Co., 107 Ohio St. 204, 140 N. E. 634, that a discussion of the principle applicable is deemed unnecessary. The judgment of the trial court and the affirmance thereof by the Court of Appeals were correctly based upon the decision of this court in that case. The judgment is affirmed. Judgment affirmed.

DAY, KINKADE, ROBINSON, JONES, and MATTHIAS, JJ., concur. ALLEN, J., dissents.

(119 Ohio St. 17)

FOREMAN v. MEDINA COUNTY NAT. BANK et al. (No. 20927.)

Supreme Court of Ohio. May 31, 1928.

(Syllabus by the Court.)

1. Wills 775, 849-Devise or legacy in will containing no residuary clause, to person not related to and dying before testator, lapses and descends as intestate property there (Gen. Code, § 10581).

Where a devisee or legatee in a will dies prior to the testator, such devisee or legatee not being a child or other relative of the testator within the terms of section 10581, General Code, and such will contains no residuary clause nor any provision showing any other intention of the testator, such legacy or devise lapses and such testator dies intestate as to such property named in such legacy or devise.

2. Wills 849-Property in lapsed legacy coming to testator from deceased spouse de scends equally to next of kin of testator, dying without issue, and deceased spouse (Gen. Code, 8577).

Where the property referred to in such lapsed legacy or devise came to the testator from a former deceased husband or wife, within the terms of section 8577, General Code, and the testator dies without issue and there are no children or the legal representatives of children of such deceased husband or wife, such property descends pursuant to the provisions of section 8577, General Code..

3. Executors and administrators

272-Per

sonalty must first be applied to payment of intestate's debts; debt though secured by mortgage on realty must be paid primarily from the personalty, if personal debt of intestate (Gen. Code, § 10774).

The general rule as to the order in which an intestate's property is liable for the payment of his debts is that the personal estate must first be applied and then the realty; and even though a debt is secured by mortgage on real estate, if it is the personal debt of the intestate, it is to be paid primarily out of the personalty.

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