mean

a citizen of this common- | section 6 of act of March 3, 1863 (12 U. S. wealth who distinguished himself by gallant Sts. at Large, c. 79, pp. 744, 751), the Presi

and heroic conduct while serving in the army or navy of the United States and has received a medal of honor from the President of the United States." The petitioner served in the navy of the United States between 1898 and 1903 and received a medal of honor "for distinguished conduct in the presence of the enemy," which was (as stated in the letter of transmittal) "Awarded [him] by the Honorable, the Secretary of the Navy, under Act of Congress of March 3, 1901." That act (vol. 31, U. S. Sts. at Large, p. 1099, c. 850) provides that in designated cases any enlisted man of the navy or marine corps "shall upon the recommendation of his commanding officer, approved by the flag officer and the Secretary of the Navy, receive" a medal of honor.

dent was authorized to cause additional medals of honor to be struck and "present the same to such officers, noncommissioned officers and privates as have most distinguished or who may hereafter most distinguish themselves in action." The terms of this act are not restricted as to time and appear to be a continuing authority limited only by the appropriation. By chapter 1485 of Act April 23, 1904 (33 U. S. Sts. at Large, p. 274 [U. S. Comp. St. Supp. 1911, p. 324]), provision was made for three thousand additional medals of honor to be presented by the President under like conditions. U. S. Act Feb. 23, 1905, c. 744, 33 U. S. Sts. at Large, p. 743 (U. S. Comp. St. Supp. 1911, p. 1316), makes provision for medals of honor to be presented by the President to those who show extreme daring in preventing accident or disaster upon railroads, and a joint resolution of July 6, 1912 (37 U. S. Sts. at Large, p. 639), for the presentation by the President of a medal of honor to Capt. Rostron of the steamship Carpathia.

On the other hand several federal statutes provide for medals of honor to be issued by other officers than the President. Act Dec. 21, 1861, c. 1, 12 U. S. Sts. at Large, p. 330; Act July 16, 1862, c. 183, 12 U. S. Sts. at Large, p. 585; Act May 2, 1896, 29 U. S. Sts. at Large, p. 473; Act May 4, 1898, 30 U. S. Sts. at Large, p. 741; Act March 3, 1901, c. 850, 31 U. S. Sts. at Large, pp. 1099, 1465 (U. S. Rev. St. § 1407 [U. S. Comp. St. 1901, pp. 1002, 1003]).

It is plain that the petitioner does not come within the literal description of our statute, for he did not receive his medal from the President of the United States." The letter to him in which it was enclosed was signed by a colonel of the marine corps and stated that it was awarded by "the Secretary of the Navy," and the federal statute under which it was issued makes no reference to "the President of the United States," but provides that it shall issue when approved by the "Secretary of the Navy." The statute is in substance a standing regulation of the navy designed (as indicated in part by the title of the original act, of which the act under which the petitioner received his medal of honor is an amendment) "to establish and equalize the grade of line officers" of the navy, to provide for their advancement in rank and in general to promote the efficiency, to strengthen the discipline and to encourage valiant service in the navy. The laws of the United States have recognized a different kind of medal of honor, commonly more restricted in character, to be presented by the President of the United States. Early instances are found in Acts Jan. 29, 1813, and March 3, 1813 (2 U. S. Sts. at Large, pp. 830 and 831) where gold medals were awarded to Capt. Hull of the frigate Constitution, to Capt. Decatur of the frigate United States, to Capt. Jones of the sloop of war Wasp and to Capt. Bainbridge of the frigate Constitution, and silver medals to each commissioned officer of these vessels, all to be presented by the President of the United States. By resolution of Congress (Act Feb. 27, 1815, 3 U. S. Sts. at Large, p. 249) the President was requested to present a gold medal to Gen. Jackson. By act of July 12, 1862 (12 U. S. Sts. at Large, p. 623) the President of the United States was author ized to present medals of honor "to such noncommissioned officers and privates as shall most distinguish themselves by their It is urged that the Secretary of the Navy gallantry in action and other soldierlike qual- is merely an administrative organ of the

It is obvious that a medal of honor presented by the President of the United States is a higher reward and a more distinguished decoration than one issued by a subordinate in the service. The acts of Congress to which reference has been made show a clear appreciation of this difference. Where such a difference between the two kinds of medals of honor has been recognized by the acts of Congress and where our statute refers by apt words to the one and not to the other, it is not reasonably possible to interpret these words as more inclusive than the natural significance of the words permits. If it had been the intention of the Legislature to comprehend recipients of medals of honor like that conferred upon the petitioner, it would have been simple to use words unmistakably expressive of that intention. If its intention had been to exclude them and confine the class to veterans of the civil war and those of the army and navy who had received presidential medals of honor, naturally the precise words of the statute would have been used. None others could have been chosen to express such an intent more accurately.

of the President. While this may be true in general, it does not follow that Congress cannot establish a distinction such as its acts plainly disclose between medals of honor awarded by each.

surety companies, purchased all the assets, except cash, of the assignor in the hands of the assignee and agreed to pay the latter an amount which, with the cash in its hands, would enable it (the assignee) to pay a dividend of 50 per cent. on the face amount of all claims of creditors allowed, which agreement, on the part of the purchaser, was approved by the court of insolvency; prior to the assignment of the principal it had placed in the hands of two of the surety companies separate collateral or purchaser of the assets of the principal must securities to indemnify them. Held, that the pay an amount sufficient for a dividend of 50 per cent. on the face amount of the claim of the obligee against the principal, as allowed, withheld by the two secured companies, and that the purchaser of the assets, under its contract of purchase, is entitled to any excess or surplus of collateral remaining after the two secured companies are indemnified thereby.

This construction finds confirmation in the circumstances that the language occurs in the civil service law, the design of which is to secure efficiency in the public service and prevent discrimination in appointments to it based on any other consideration than fitness to perform its duties. It concerns a preference in favor of veterans, the constitutionalence in favor of veterans, the constitutional-out any reduction on account of the collateral ity of which has been much debated (Brown v. Russell, 166 Mass. 14, 43 N. E. 1005, 32 L. R. A. 253, 55 Am. St. Rep. 357), and, although sustained by a majority of the justices in an advisory opinion (166 Mass. 589), in any event cannot go beyond closely confined boundaries. Extension of such preference is not to be implied from equivocal words. Petition dismissed.

(88 Ohio St. 216)

ASSETS REALIZATION CO. v. AMERICAN
BONDING CO. OF BALTIMORE et al.
(Supreme Court of Ohio. June 17, 1913.)
(Syllabus by the Court.)

Co

1. PRINCIPAL AND SURETY (§ 192*)
SURETYSHIP-CONTRIBUTION.
Where several surety companies are bound
by separate instruments on account of the same
principal, and each company, by its bond, limits
its liability, in the event of default on the part
of the principal, to such proportion of the total
loss sustained by the obligee as the penalty nam-
ed in its bond bears to the total amount of the
bonds furnished by the principal to the obligee,
the suretyship of each company is a separate
and distinct transaction, and the relation of co-
suretyship among them does not arise, nor does
the right of contribution exist.

[Ed. Note. For other cases, see Principal and Surety, Cent. Dig. §§ 578-590; Dec. Dig. § 192.*]

2. PRINCIPAL AND SURETY (§ 193*)-SURETIES

SEPARATELY BOUND-COLLATERAL.

Where, in such case, collateral or securities are placed by the principal in the hands of one of the companies to indemnify it against any loss it might incur by reason of its obligation on its bond, none of the other companies, in the event of the default of the principal, is entitled to any part of such collateral or securities to indemnify it against a loss incurred on account

of its bond.

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. 88 591-604; Dec. Dig. § 193.*]

3. ASSIGNMENTS FOR BENEFIT OF CREDITORS (8243*)-PROPERTY-SALE BY ASSIGNEE.

The principal, indebted at the time to the obligee on the obligation for which the bonds were required, made an assignment for the benefit of its creditors, and the claim of the obligee against the principal was allowed by the assignee; the several surety companies paid to the obligee the amount of this claim, each company paying the proportionate part of the indebtedness as provided in its bond, and each company taking an assignment from the obligee of its proper fractional share of the claim of the obligee against the principal and its assignee; subsequently a company, other than the

[Ed. Note.-For other cases, see Assignments for Benefit of Creditors, Cent. Dig. §§ 775-777; Dec. Dig. § 243.*]

(Additional Syllabus by Editorial Staff.) 4. PRINCIPAL AND SURETY (§ 192*) - "CoSURETYSHIP."

The test of cosuretyship is common liability upon the same obligation.

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 578-590; Dec. Dig. § 192.*]

Error to Circuit Court, Cuyahoga County. Action by the American Bonding Company of Baltimore and others against the Assets Realization Company and others. From the judgment, the defendant named brings error. Modified.

The American Bonding Company of Baltimore, the United States Fidelity & Guaranty Company, and the Fidelity & Casualty Company brought suit in the common pleas court of Cuyahoga county against the Fidelity & Deposit Company of Maryland, the National Surety Company, the Etna Indemnity Company, the Metropolitan Surety Company, the United Surety Company, the city of CleveCleveland Trust Company, and the Assets land, the Euclid Avenue Trust Company, the Realization Company. Plaintiffs, in their petition, asked, among other things, judgment against the Cleveland Trust Company, the assignee of the Euclid Avenue Trust Company, for full dividends upon the proportions of the face value of a certain claim of the city of Cleveland against the Euclid Avenue Trust Company, which proportions were assigned to plaintiffs, and further asked that certain securities or notes and mortgages held by the National Surety Company and the Fidelity & Deposit Company of Maryland be ordered converted into money in such manner as the court might direct, and, after paying costs and expenses, the same be apportioned among the various bonding or surety companies, plaintiffs and defendants in said action.

All the defendants, except the city of Cleveland and the Euclid Avenue Trust Company, filed answers and cross-petitions and the cause was submitted to the common pleas court upon the petition of plaintiffs, the vari

eus answers and cross-petitions, the replies, | dates of the bonds, and all were executed and the evidence, and the common pleas court and placed in the hands of the depositary rendered judgment practically in accord with commission of the city of Cleveland at vathe prayer of the plaintiffs and of the cross-rious dates prior to June 29, 1907, on which petition of the bonding companies other than date all were approved; the form of these the Fidelity & Deposit Company of Maryland bonds, except as to the names of the surety and the National Surety Company. An ap- companies and the amounts, being as follows: peal to the circuit court was taken from the "American Bonding Company of Baltimore, judgment of the common pleas court by the Home Office, Baltimore, Md. Know all men two companies last named, and the circuit by these presents that we, the Euclid Avecourt granted the entire relief sought by nue Trust Company, of the city of Cleveland, plaintiffs and stated its conclusions of law county of Cuyahoga, and state of Ohio (hereand its conclusions of fact. after called the principal) as principal, and the American Bonding Company of Baltimore, a corporation of the state of Maryland (hereinafter called the surety) as surety, are held and firmly bound unto the city of Cleveland, of the county of Cuyahoga and state of Ohio, hereinafter called the obligee, in the sum of fifteen thousand ($15,000) dollars, for the payment whereof said principal and said surety bind themselves, their successors, assigns, executors, administrators and heirs, firmly by these presents. The condition of the above obligation is such, that whereas, on the 7th day of November, 1906, the depositary commission of the city of Cleveland, under and by virtue of the provisions of the laws of the state of Ohio,

To understand clearly the relations of the parties, the questions involved, and the matters in controversy, it is necessary to recite at length the facts found by the circuit court. This litigation grew out of the failure of the Euclid Avenue Trust Company, a banking institution of the city of Cleveland, which was a depositary of certain funds of that city. It was appointed and designated a depositary of a part of the public money of the city for a term of three years, beginning July 1, 1907, and ending June 30, 1910; the amount of money on deposit to be at no time in excess of the sum of $250,000. This appointment was made under the authority of an ordinance of the city creating a depositary commission. Among the provisions of this ordinance was one which required a bank awarded the use of the public money to tender a good and sufficient bond issued by a surety company or to furnish good and sufficient security in a sum not less than 20 per ficient security in a sum not less than 20 per

cent. in excess of the maximum amount at

any time to be deposited in said bank; the maximum amount to be deposited with the depositary in this case being $250,000. The amount of bond or security to be furnished was $300,000. The ordinance further provided that the undertaking should be conditioned for the receipt, safe-keeping, and payment over of all moneys which might come into the custody of the bank under and by virtue of the ordinance, together with interest at the rate specified in the proposal of the bank, and further conditioned for the faithful performance of the bank or depositary of all duties and obligations imposed by the laws of the state of Ohio.

The Euclid Avenue Trust Company procur-
ed bonds from eight surety companies; the
names of the companies and the penalties of
their respective bonds being as follows:
The National Surety Co........

The United States Fidelity & Guaranty Co...
The American Bonding Co.......
The Etna Indemnity Co.......
The Fidelity & Deposit Co....

The Fidelity & Casualty Co.....
The Metropolitan Surety Co...
The United Surety Co........

Aggregating

and of certain ordinance known as ordinance

No. 44,229, passed by the council of the city
of Cleveland on the 2d day of May, 1904,
and as amended by ordinance No. 3,084,
passed by the council of the city of Cleveland,
February 6, 1906, did award to the princi-
pal above named the custody of a propor-
tionate amount of the public money of the
city of Cleveland in the hands of the treasur-
er thereof, to wit, fifty eighteen-hundreths
(50/1800), said amount at no time to be in
excess of two hundred and fifty thousand
dollars ($250,000) for a period of three years
from the 1st day of July, 1907, to and in-
cluding the 30th day of June, 1910; said
award and said deposit to be subject to all ·
the provisions and requirements of law, as

the same are set forth in the laws of the

Now,

state of Ohio and said ordinance. therefore, if the said principal shall well and truly receipt for all moneys deposited by the treasurer of the city of Cleveland, with it hereunder, and shall safely keep and pay over the same, as provided by the laws of the state of Ohio, and by the terms of $20,000 said ordinance No. 44,229, and as amended 35,000 by ordinance No. 3,084, passed by the coun15,000 cil of the city of Cleveland, February 6, 1906, 50,000 and shall well and truly pay all sums de50,000 posited, and interest thereon at four and 20,000 one-twentieth per cent. (41/20 per cent.), 10,000 as specified in its proposal upon which the award herein referred to is made, and shall further faithfully perform all the duties and obligations imposed by the laws of the state of Ohio and said ordinance upon said principal as depositary of said public money,

25,000

$225,000

As stated by the circuit court, all these bonds were identical in form, except as to the amounts of the penalties of the bonds,

Cleveland, acting by and through its depos- | positary from the possession of the city, and itary commission, shall have the right to a surety bond in the penal sum of $54,000, sell and dispose of the securities so deposited, executed by the Fidelity & Deposit Company or any securities substituted therefor until of Maryland, as surety, was given to and acany such default has been made good to the cepted by the city; this bond being the same city of Cleveland. form and in the same language, except as to dates, parties, and amounts, as the other surety companies' bonds approved by the depositary commission on June 29, 1907. So that on the 21st day of October, 1907, the city had as security for the deposit with the depositary the eight bonds aggregating in amount $225,000, the $54,000 bond of the Fidelity & Deposit Company of Maryland, and the remainder of the Newburg bonds ($21,000)-in all $300,000. On said date the securities aggregating $54,000, which had been

"(3) The Euclid Avenue Trust Company reserves the right from time to time to withdraw the securities deposited hereunder and substitute in their place other securities of a character and amount acceptable to the depositary commission, such substitution being likewise permissible to be made by surety bonds at the option of the said the Euclid Avenue Trust Company.

"(4) The city of Cleveland reserves the right at any time to demand and the Euclid Avenue Trust Company agrees to supply up-withdrawn by the depositary, were sold. The on such demand, such additional security for the deposits to be made under and by virtue of said award as may to the opinion of said commission be just and reasonable.

"(5) The securities deposited as herein referred to shall remain deposited in the safety deposit box and no access shall be had thereto by either party hereto except in the presence of a representative of the other party, and the depositary commission agrees upon request of the Euclid Avenue Trust Company to send a representative to be present to permit the withdrawal of the securities so deposited for the taking of the coupons therefrom or to carry out any other order with regard thereto which has been submitted to and approved by the depositary

commission.

"Witness our hands this day of June 29th, A. D. 1907. The Euclid Avenue Trust Company, by R. S. Thomas, Sec'y & Treas. The Depositary Commission, by Tom L. Johnson, Pres. C. H. Nau, Sec'y."

On the same day (June 29, 1907), in pursuance of the foregoing contract, the Euclid Avenue Trust Company deposited with the depositary commission securities of the face value of $75,000, being the securities mentioned in the contract, and thereupon the eight surety company bonds, aggregating $225,000, and the collateral contract, with the securities referred to, were approved by the city, and said depositary contract became effective.

amount realized thereon ($54,000) was loaned to a concern known as the Avenue Apartment Company, which loan was secured by a mortgage on the property of this company, executed on said 21st day of October, 1907. This mortgage was on that date deposited with the Fidelity & Deposit Company as collateral security for its bond of $54,000 given to the city, which bond was accepted by the city as a substitute for the securities withdrawn.

The circuit court found that this was done pursuant to an arrangement among the city, the depositary, the Apartment Company, and the Fidelity & Deposit Company of Maryland, the surety on the $54,000 bond, and further found that the latter company had collected and held in its possession one year's interest upon the mortgage in the sum of $3,240 and had expended and incurred liabilities in the collection of interest upon the mortgage the sum of $250.

On the 18th day of November, 1907, the National Surety Company, one of the companies whose bonds were accepted on June 29, 1907, demanded and received from the depositary certain promissory notes aggregating $12,975, secured by mortgage on real estate. This was done in pursuance of certain stipulations contained in the application which the depositary had made to the National Surety Company, on the basis of which it wrote its bond, which stipulation was in substance that the depositary would at all times indemnify and keep indemnified the National Surety Company and save it harmless from and against all claims, demands, etc. The circuit court found that the National Surety Company had expended and incurred liability in the collection of the notes and mortgages in its possession in the sum of $1,200.

In the month of July, 1907, under an arrangement between the city and the depositary, the Elyria waterworks bonds ($10,000) were withdrawn from the possession of the city of Cleveland and street improvement bonds of Cleveland, in the same amount, substituted therefor, and there were then with the city $24,000 Cleveland improvement bonds. On the 21st day of October, 1907, by virtue Deposits had been made from time to time of the provisions of section 3 of the contract with the depositary, and on the 8th day of of June 29, 1907, between the city and the May, 1908, there was due the city from it, Euclid Avenue Trust Company, $22,000 of the in its capacity as city depositary, the sum of Newburg bonds, all the Cleveland improve- $174,361.99, on which day said depositary, ments bonds ($24,000), and the Akron sewer the Euclid Avenue Trust Company, made an