red. And the subsequent and supplemental sections point out the mode of enforcing the lien of the judgment, and preserving its priority. Sections 8516-35 declare that, if one company owning a railroad jointly with another company shall refuse to pay its part of the costs of making necessary additions and improvements as directed by the statute, judgment may be recovered therefor, which "shall be a valid lien upon the interests of the party so in default in said railroad or part of railroad owned jointly as aforesaid, and such interest may be sold at public sale as in other cases upon execution," and the purchaser shall enjoy "all the rights, privileges, and franchises which were exercised or enjoyed by the company owning the same at the time of the sale." Other instances may be found in sections 3299, 3866, 6449. By section 5375 of the Revised Statutes, a judgment is made a lien on all the lands of the debtor, and any vested interest he may have in lands, situated in the county where the judgment is rendered, either from the first day of the term of the court at which it is rendered, or from the day of its rendition. And we are of the opinion that judgments recovered against railroad corporations become liens upon their real property situated in the county where rendered, and that lands owned by such corporations for their roadways, rights of way, depots, and other purposes must be regarded as property of that character, and subject to such liens. We are also of the opinion that while the judgment creditor may not, except as authorized by statute, sell on execution the property to which his lien attaches, separate from the franchise of the company, nor when it is part only of the corporate property, and is necessary, in connection with the balance of the property, to enable the company to accomplish the purposes of its organization and perform the duties it owes to the public, or its sale will materially impair the uses and value of the balance of the property, he may, by a proceeding in equity, to which all persons interested are made parties, enforce his lien by subjecting the whole of the property and franchises of the corporation to sale. The pleadings do not seem to have been drawn with this view of the case. The property is not adequately described in the petition or cross petition of Fox, but such description is supplied by the answer of the railway company. Then, the recovery of Fox's judgment was subsequent to the record of the mortgage under which the former sale was had, and it appears the proceeds were insufficient to pay the indebtedness secured by it; and, as it is not shown that the claim on which the judgment was rendered was such as to entitle it to priority over the mortgage, the latter must be treated as the superior lien, and entitled to receive the unpaid balance out of the proceeds of any sale of the property that may be had at the instance of Fox, before any part can

be properly applied on his judgment. The holder of the mortgage, or of the indebtedness secured by it, is therefore a necessary party; but, as he can only be interested in the distribution of the proceeds of the sale, it will be sufficient if the party is brought in before that takes place. The presence of the party is not necessary before the decree of sale. It may turn out that the resale will produce no more, nor even enough to pay the balance of the mortgage debt; but whether a suitor's remedy promises to be productive of beneficial results, or not, is for his consideration. The court is concerned only with his rights. The judgment rendered by the circuit court against Fox is reversed, and the cause will be remanded for a decree in his favor, in accordance with this opinion. In other respects the judgment is affirmed.

(53 Ohio St. 342)

HAVENS et al. v. HORTON.

(Supreme Court of Ohio. June 27, 1895.) DEED OF ASSIGNMENT-POWER OF PROBATE COURT TO ORDER SALE OF MORTGAGED LAND-JURIS DICTION NOT OUSTED BY MORTGAGEE'S ACTION TO FORECLOSE.

1. Where a deed of assignment has been filed in the probate court in accordance with section 6335 Rev. St., and the assignee has quali fied, that court is clothed with jurisdiction to fully execute the trust. And, where such deed conveys land incumbered by mortgage, the court has power, as an incident of jurisdiction, to order the land sold and the mortgage satisfied.

2. Jurisdiction thus acquired is not ousted by the subsequent commencement of an action by the mortgagee, in the court of common pleas of the county, to foreclose the mortgage. (Syllabus by the Court.)

Error to circuit court, Perry county.

On May 11, 1893, Thomas Horton, Jr., commenced an action in the court of common pleas of Licking county, to recover upon six promissory notes, and, for a seventh cause of action, to foreclose a mortgage on land in that county, given to secure payment of the notes against Robert Meridith, maker and mortgagor, and George W. Havens, assignee.

From a judgment of the circuit court affirming a judgment of the common pleas, defendants bring error. Reversed.

Havens answered, alleging, in substance, "that, on the 1st day of April, A. D. 1893, the said Robert Meridith made and executed, and delivered to him, his certain deed of assignment, granting and conveying to him all his property, real and personal, including the real estate described in plaintiff's petition, in trust, under the insolvent laws of the state of Ohio, for the benefit of all the creditors of the said Robert Meridith; that said deed of assignment was filed in the probate court of Licking county, on the 1st day of April, A. D. 1893, at 1:20 o'clock p. m., and that this defendant, on said date, accepted the trust created in him by said deed of assignment, gave bond, and was duly qualified by said probate court, and entered upon the discharge of his duties as such assignee; that, on the 25th

day of April, A. D. 1893, an order of appraisement issued out of the probate court of said county, to three judicious, disinterested, and qualified appraisers, directing and authorizing them to appraise, according to law, all property, real and personal, and assets of the said Robert Meridith, assigned as aforesaid to this defendant; and that said appraisers, acting under the authority of said order of appraisement, made an inventory and appraisement of all the assets of said estate, including the real estate described in plaintiff's petition, and delivered said order of appraisement, with their proceedings thereon, to this. defendant, and that this defendant filed the same in the probate court of said county, verified by his oath as required by law, on the 25th day of May, 1893; and this defendant says that, on the 21st day of June, 1893, he filed a petition, as assignee of the said Robert Meridith, in the probate court of said county, to sell all the real estate belonging to said assignment, including the real estate described in plaintiff's petition; and that, on July 1st, 1893, the probate court, finding that Thomas Horton, Jr., plaintiff in this action, and one of the defendants in the petition to sell said real estate, filed, as aforesaid, in the probate court, by this defendant, as assignee, was a nonresident of Licking county, ordered that summons be served on said Horton by publication; and that such proceedings were had under said order that, on August 18th, 1893, proof of publication of notice and service of summons thereby on said Thomas Horton, Jr., was filed in said probate court; and that, on the day of September, 1893, the said Thomas Horton, Jr., by his attorney, filed his motion in said probate court to said petition of this defendant, and afterwards, to wit, on the day of September, 1893, on the application of said Thomas Horton, Jr., leave was given him to file his answer in said case in said probate court; and that, by reason of the premises and of the facts above stated, said probate court had jurisdiction of the subject-matter of plaintiff's seventh cause of action before the commencement of plaintiff's action in the court; and that said suit is now pending in said probate court."

To this answer the plaintiff demurred. The demurrer was sustained, and decree of foreclosure entered. From this judgment the assignee appealed to the circuit court, where a like holding was had, and judgment rendered. To reverse this judgment the present proceeding in error is prosecuted.

J. A. Flory and G. E. Daugherty, for plaintiff in error. J. R. Davies, for defendant in error.

PER CURIAM. By the filing of the deed of assignment in the probate court, and the qualification of the assignee, in conformity with section 6335, Rev. St., that court acquired jurisdiction of the real as well as personal property conveyed by the deed of assignment, and power to order sale of the land and payment

of the incumbrance thereon; and that jurisdiction was not ousted by the commencement of an action by the mortgagee in the court of common pleas to foreclose his mortgage. Dwyer v. Garlough, 31 Ohio St. 158; Linderman v. Ingham, 36 Ohio St. 1; Blandy v. Benedict, 42 Ohio St. 299; Sayler v. Simpson, 45 Ohio St. 141, 12 N. E. 181; Betz v. Snyder, 48 Ohio St. 498, 28 N. E. 234; Clapp v. Banking Co., 50 Ohio St. 536, 35 N. E. 308; McNeil v. Hagerty, 51 Ohio St. 263, 37 N. E. 526. Judgment reversed, and cause remanded to the circuit court, with directions to overrule the demurrer and dismiss the petition.

Error to circuit court, Columbiana county. Action by Alexander G. Smith, as administrator of the estate of Henry Davidson, deceased, against the Ohio & Pennsylvania Coal Company. Judgment for plaintiff, and defendant appeals. Affirmed.

For injuries claimed to have been caused by the negligence of the Ohio & Pennsylvania Coal Company and its agents, Henry Davidson, then in life, commenced an action against the company to recover damages. On a trial had a judgment was rendered in his favor, which was afterwards set aside on error by the circuit court, and a new trial awarded. Afterwards, and before the new trial was had, Davidson died, and the action was revived in the name of his administrator, Alexander G. Smith. A trial was then had, which resulted in a verdict and judgment against the company. It was claimed that, on the death of the plaintiff, the action abated, under section 5144, Rev. St., and that the court erred in permitting it to be reversed. On error the judgment was affirmed by the circuit court. Error is prosecuted to this court to reverse the judgment on the ground, among other assignments, that there was error in the revivor of the action.

Blandin & Rice, John W. Morrison, and H. M. Daugherty, for plaintiff in error. Alex. G. & P. M. Smith and P. M. Ashford, for defendant in error.

PER CURIAM. We see no error in the ruling of the court. The action was a pending one at the death of the plaintiff. It is not within any of the enumerated exceptions of section 5144, and was therefore properly revived and prosecuted to judgment in the name of the administrator of the deceased plaintiff. Judgment affirmed.

(53 Ohio St. 251)

PENDERY v. ALLEN et al. (Supreme Court of Ohio. June 18, 1895.) FRAUDULENT CONVEYANCE-SUIT To Set AsideJUDGMENT AGAINST DEFENDANT-PARTICIPA

TION AS CREDITOR-NOTICE OF SUIT.

1. Where notice is given of the pendency and object of a suit to set aside a conveyance, claimed to have been made to defraud creditors, or to declare an assignment, giving preferences, a trust for the benefit of all the creditors of the assignor, and judgment is rendered against the defendant, he is not precluded by such notice from participating as a creditor (if one) in the distribution of the fund, though other creditors came in and complied with the provisions of the statute (section 6344, Rev. St.) giving to such creditors, with the plaintiff, a priority in its distribution.

2. The provisions of section 6344, Rev. St., as to giving notice of the pendency and object of a suit to set aside a conveyance, applies to a suit under the previous section to declare an assignment giving preferences a trust for the benefit of all creditors of the assignor.

(Syllabus by the Court.)

Error to circuit court, Hamilton county. Action by Israel H. Pendery against A. C. Allen and others to set aside certain conveyances as fraudulent. Judgment for plaintiff. From the order of distribution, he brings error. Modified.

Oliver B. Jones and James W. O'Hara, for plaintiffs in error. March & Ritchie, R. Tyler, P. Roettinger, J. R. Von Seggern, D. Thew Wright, J. T. Harrison, and Harrison & Aston, for defendants in error.

MINSHALL, C. J. This case was recently in this court on error. It was there determined that the mortgage to Lowe Emerson, made and delivered by E. P. Allen, was in the nature of an assignment in contemplation of insolvency, made to secure certain creditors of the mortgagor, and therefore inured to the equal benefit of all his creditors, within the meaning of section 6343, Rev. St.; and the cause was remanded to the court of common pleas, to be administered in accordance with the statute regulating such assignments. Pendery v. Allen, 50 Ohio St. 121, 33 N. E. 716. On distribution, after the payment of costs, expenses, and attorney's fee, the court ordered the fund in the hands of the trustee (Lowe Emerson) and of the sheriff of the county to be paid to all the creditors of Edward P. Allen, including Lowe Emerson, in proportion to the amount of their respective claims. This the plaintiff claims is error, on the ground that, at the commencement of the suit, he caused notice to be given of the object and pendency of it, as provided in section 6344, Rev. St., and that thereupon a priority should have been given to him and those who came in under the notice and complied with the provisions of that section, not only over the remaining creditors, but also over the defendant Lowe Emerson, as a creditor of Allen. In other words, it is claimed that, on the commencement of such a suit, and the giving of the notice, the defendant is

required to elect whether he will contest its prosecution, or abandon the defense and take with the other creditors in proportion to his claim as creditor; and that, if he elects to defend, and the assignment is declared a trust within the meaning of section 6343, he is postponed as a creditor until the plaintiff, and the other creditors who came in with him under the notice are satisfied. We do not accept this as the proper construction of the statute. The provision of section 6343, that the creditors who come in under the notice and comply with its provisions "shall be first entitled with the plaintiff to the benefits of such transfer or assignment, in proportion to the amounts of their respective claims," relates to the creditors other than the defendant. The latter, being in by summons, is not within the purview of the notice, and his rights are not affected thereby. He may defend against the suit, and, if he fail, what he loses is the preference claimed under the transfer or assignment. The thing recovered in such action is, in contemplation of law, the excess of the property transferred or assigned, over and above the claim of the defendant as a general creditor of the assignor. Thus, in an action to set aside a conveyance claimed to have been made to defraud creditors, the court found that the consideration was inadequate (being the liability of the grantees for the grantor, as surety on the claims of certain creditors, the liability being some $1,000 less than the value of the land as found by the court). The grantees were required to accounty only for the excess. In other words, they were treated as creditors to the extent of their liability as sureties. Jamison v. McNally, 21 Ohio St. 295, 296. The court, then, did not err in its order directing that Emerson should be included as a creditor in the distribution of the fund. But a notice was given, at the commencement of the suit, of its pendency and object. The notice was of the pendency of a suit to set aside the mortgage as made to hinder and delay creditors. Subsequently, by an amendment, the object was changed so as to ask that it be declared an assignment to prefer creditors, under section 6343, Rev. St. It is quite certain, as we think, that the provisions of section 6344 as to giving notice apply as well to a proceeding under section 6343 as under the subsequent section. Such is the express language of the statute. But we are also of the opinion that a notice to set aside a conveyance on the ground that it was made to hinder and delay creditors is not rendered ineffective by a subsequent amendment asking to have a trust for creditors declared. The relief sought in either case is substantially the same. Therefore, as certain creditors of Allen did come in under the notice and give security as required by the statute, they, with the plaintiff, are entitled to priority in the distribution of the fund (after the payment of costs, expenses, and attor

ney fees) over such other creditors as did not come in. The decree will be modified, in accordance with this opinion.

(53 Ohio St. 307)

STATE V. JOHNSON, City Clerk. (Supreme Court of Ohio. June 25, 1895.) DIVERSION OF MUNICIPAL FUNDS-PUNISHMENTCONVERSION OF MONEY BY OFFICER TO

OWN USE-EMBEZZLEMENT.

The object of section 6846, Rev. St. is to punish as an offense the diversion, appropriation, or application of the funds of a municipal corporation, or of a board of education, by an officer or agent there named, to a use other than that for which the funds were raised. A conversion of the money to his own use by such officer or agent is an offense, under section 6841, punishing the embezzlement of public money, and is not within the language or spirit of the above section.

(Syllabus by the Court.)

Exceptions from court of common pleas, Jefferson county.

William R. Johnson, city clerk of Steubenville, was convicted of appropriating certain moneys belonging to the public light fund of the city. A motion in arrest of judgment, on the ground that the indictment charged no offense under the statutes, was sustained, and the prosecuting attorney excepts. Exceptions

overruled.

Dio Rogers and E. E. Erskine, for the State. J. M. Jordan and J. F. Daton, for de

fendant.

MINSHALL, C. J. The defendant was tried and convicted upon an indictment presented by the grand jury of the county. The indictment contained four counts. The conviction was had upon the first. The others, so far as the question here is concerned, are immaterial. The first count charged that the defendant, being the clerk of the city of Steubenville, on September 5, 1893, "did then and there, unlawfully and knowingly, divert, appropriate, and apply certain funds of said city of Steubenville, to wit, moneys, in the sum of $93.75, belonging to the 'public light fund' of said city, to other use and purpose than that for which the same was raised, by then and there converting the same to the use of him, the said William R. Johnson, the same having been raised under the laws of the state of Ohio for the use of said public light fund," and that it came into his hands in pursuance of the ordinances of the city. The jury found the defendant guilty as charged in the first count, and not guilty as charged in the other counts; the other counts differing from the first only in the averment as to the official character in which the defendant acted, the second count charging him as "agent," the third as "officer," and the fourth as "servant." The jury also found that the defendant "diverted and appropriated $93.75 to a use and purpose other than that for which it was raised." A motion was made in arrest of judgment, on the ground that the

facts stated in neither count of the indictment constitute an offense under the laws of Ohio. The motion was sustained, and the prosecuting attorney excepted to the ruling, and brings the question here for review upon a bill of exceptions.

It is claimed, and seems to be conceded by the prosecuting attorney, that the indictment was drawn to support a conviction under section 6846, Rev. St.; and the question is whether its averments are sufficient for that purpose. We are of the opinion that they are not. That section reads as follows: "A member of the council or board of aldermen of any municipal corporation, or an officer, agent, clerk, or servant of such corporation or of any board or department thereof or any officer, agent, clerk or servant of any board of education who knowingly diverts, appropriates or applies any funds or part of any fund raised under any law by taxation or otherwise to any other use or purpose than that for which it was raised or appropriated, or who knowingly diverts, appropriates, or applies any money borrowed, or any bond of the corporation, or any part of the proceeds of such bond, to any other use or purpose than that for which such loan was made, or bond issued, shall be deemed guilty of embezzling the amount so diverted, appropriated, or applied, and punished accordingly." The purpose of this section seems very clear from the language employed. It is not to punish any act of an officer or agent of a corporation, done with the view of personal gain, such as converting money under his control to his own use, but his act as such officer or agent, knowingly done for the purpose of diverting or misapplying the money belonging to a particular fund or raised for a particular purpose to some other fund or municipal purpose than that for which it was raised. The offense of converting money or property intrusted to the care of a person to his own use, that is, embezzlement, in its proper sense,-is punished by the previous sections of the statutes. This offense is not of that character. This more fully appears from the history of the section. On May 7, 1869, what is known as the "Municipal Code" was adopted. 66 Ohio Laws, 149. It provided, in chapter 53 thereof, for the creation of a "sinking fund," for the gradual extinguishment of the bonds and funded debt of municipal corporations; and, to secure the preservation of this fund, it was enacted, in section 675, that "if any member of the council, or officer of the corporation, shall knowingly divert or appropriate the tax or sinking fund raised under this act, to any other purpose than that to which it is by this act appropriated, he shall, on conviction," be punished as therein provided. 66 Ohio Laws, 263.

By an amendment, passed April 7, 1876 (73 Ohio Laws, 116), this section was so extended as to make it an offense for any member of the council, officer, or agent of the corporation, to knowingly divert or apply any fund to a use or purpose for which it was not

raised. This section, as amended, was further extended, and made to include the misapplication of loans and bonds, and of the funds of a board of education, and is now the section of the Revised Statutes in question. A disregard of the inviolability, intended by the legislature, of sinking funds, and finally of all funds, raised for a particular purpose, without doubt, induced the enactment of section 6846, and of the sections of which it is a revision, and its object is to punish the agent concerned in the diversion. It is, therefore, clear that the averments of the indictment are not sufficient to constitute an offense under this section. It is true the indictment avers that the defendant knowingly diverted and appropriated the moneys of the public light fund of the city to uses other than those for which the fund was raised; but this was done, as the indictment proceeds to aver, by converting the same to the use of the defendant. Such conversion constitutes an offense under section 6841, punishing the embezzlement of public money.

If the evidence had been sufficient to support a conviction under this section, it is possible that, by a liberal construction, the indictment might have been construed to charge such an offense. It does not follow the usual form of such an indictment (Wilson's Ohio Cr. Code, p. 69), and the prosecuting attorney does not claim that it was drawn under section 6841. His claim is that it is under the following section, 6846. To regard it as drawn under the prior section, the averment that the defendant did unlawfully and knowingly divert, appropriate, and apply certain funds, the public light fund of the city, to other use than that for which they were raised, would have to be regarded as surplusage. But we need not decide the question here. A good prosecutor, intending to charge an offense under section 6841, would most likely follow forms based on the language of the section, and omit all immaterial averments. The jury in their verdict found that the defendant "diverted and appropriated $93.75 to a use and purpose other than that for which it was raised." The evidence is not contained in the bill of exceptions, so that this court cannot know that the jury meant by this something not expressed in the language. It is certainly not equivalent to a finding that he converted the money to his own use, and is consistent with the fact that he did not; so that we cannot say that the court erred in arresting the judgment. Exceptions overruled.

cannot, under section 5011, Rev. St., sue in the name adopted for the transaction of its busi

ness.

(Syllabus by the Court.)

Error to circuit court, Summit county.

Action on contract by the Akron Brick Association, a partnership, against Andrew Jackson and another. Judgment for plaintiff, and defendants appeal. Reversed.

Kohler & Musser, for plaintiffs in error. Oviatt, Allen & Cobb, for defendant in error.

MINSHALL, C. J. The action below was brought by the Akron Brick Association, claiming to be a partnership doing business under that name in the city of Akron, against Jackson and Lyman as defendants. The object of the suit was to recover on a contract, by which, as averred, Jackson & Lyman agreed to pay the association for brick it was then furnishing to Barnett & O'Near, subcontractors of the defendants. The defendants denied any liabilty upon the contract, and also denied that the plaintiff was a partnership doing business under the name of the Akron Brick Association. They also, as a separate and specific defense, averred "that said Akron Brick Association, so-called, is not in fact a lawful partnership, but that said alleged partnership is a combination of all or nearly all of the several brick manufacturers and dealers in and about the city of Akron, in which place, and in order to accomplish its purposes, said association has established and now maintains a central office or agency through which all purchases of brick must be made, and through which all sales of brick are made; that the object and purpose of forming and maintaining said association, and of said agency, was and is to control and enhance the price of brick, and in order to prevent and do away with a fair, open competition among the several companies, firms, and individuals entering into and comprising said association; that the said union or association is in restraint of trade and contrary to sound public policy." By a reply the averments of the answer were denied, and, in compliance with interrogations annexed to the answer, the plaintiff added a copy of the articles under which the association was formed and does business. From the view we take of the case, it is unnecessary to consider any of the errors assigned, other than the one that relates to the right of the plaintiff to sue by the assumed name of the Akron Brick Association. The articles of association, in connection with the evidence, support the averments of the defense. On the trial of the case the court, in its charge to the jury, dispensed with any consideration of the question by the jury, saying: "In our jurisprudence it is no defense to say that the contract was made with a bad man, or with persons engaged in prosecuting acts contrary to law or the policy of the state, unless the contrary grows immediately out of and in connection with an illegal