Lake Common Pleas.

agreement that it must be paid within a reasonable time after the expiration of the thirty days. If there was no time fixed after the expiration of the thirty days, when the constitution and by-laws provided that it must be paid, then, as a matter of law, it might be paid when the company called for it, or within a reasonable time thereafter, or within a reasonable time after expiration of the time to which it may have been extended, if there was any extension of time. Now, if you find that there was a waiver, you should find for the plaintiff. If you fail to find there was a waiver your verdict should be for the defendant. If you find for the plaintiff there is but little controversy of the amount of your finding, which would be $540.00, with interest according to the policy, as we understand from the counsel upon both sides, for no testimony has been introduced excepting two witnesses perhaps.

ADMINSTRATORS.

[Hamilton Common Pleas, 1893.]

MILTON SATER, ADMN., V. WILLIAM W. Pease, ADMR.

LIABILITY OF ADMINISTRATOR FOR WRONGFUL DISTRIBUTION.

Where an administrator made a wrong distribution of an estate, upon a finding that there were no such children as those designated in the will, and notice of the petition in the probate court was advertised but five weeks, when it should have been advertised for six weeks, the order is void for want of jurisdiction and the administrator and sureties on his bond are liable to the rightful distributees.

John F. Follet and Milton Sater, for the plaintiff.

Judson Harmon, contra.

The probate court entertained a petition from the first administrator of the McCloud estate for instructions as to who were entitled to take under the will. At the hearing the probate court found that there were no such children as those mentioned in the will, and that the widow was the sole legatee under the will. Afterward the children appeared and asserted their rights under the will. The notice of the pendency of the petition in the probate court was advertised five weeks, and in the proceeding brought by the children it was held by Judge Matthews and also in the circuit court (Sater v. Kocher, 6 Circ. Dec., 276) that the notice of the pendency of the petition should have been advertised six weeks, instead of five, and that the action of the probate court was premature, in that such a petition could not be entertained until an order of distribution had been made and the administrator found himself unable to comply with it. The present suit was then brought against the estate of the deceased administrator and his bondsmen, who became liable in the sum of $15,000. The hearing was upon the merits.

Sater v. Pease.

SAYLER, J.

It seems to me that the points made in the brief of the defendants in this case are concluded by the decision of the circuit court in the matter of the estate of Joseph P. McCloud, deceased. Sater v. Kocher, supra. The defendants claim: ·

1. That the probate court had authority to entertain the petition filed under sec. 6198 et seq., Rev. Stat. But the circuit court say in their opinion that sec. 6198, Rev. Stat., is not an independent section, but depends on sec. 6195, Rev. Stat., and that no settlement and order of distribution had been made as required by that section, and that this was necessary before the court could proceed under sec. 6198, Rev. Stat.

2. That the filing and approval of the final account and the lapse of thirty days thereafter are not jurisdictional. But the circuit court say differently as above stated.

3. That the proceeding was one in rem and that failure to give notice, does not deprive the court of jurisdiction, but is mere error. But the circuit court say that the probate court had no jurisdiction of the parties, because the notice was not in accordance with the statute.

4. That the court having jurisdiction, its juagment cannot be assailed as void because of defective notice, because the court found that due notice had been given, by order, of August 22, which does not specify what the notice was, but the circuit court say that the fact that the court finds that proper notice was given, should not be taken as true, when the record discloses the fact to be that no legal notice was given, and further that the probate court did not have jurisdiction of either the persons or the subject matter of the action.

5. That the proceedings being only erroneous, but not void, defendants in error could not proceed by mere notice as they did; but the circuit court say that the proceedings were void, and that a motion was the proper remedy.

And lastly, that as only the guardian of Mrs. McCloud was notified of the motion to set aside the order of the probate court, the order is still in force as a protection against the claim now made on the sureties on the bond of Converse; but the circuit court has held that the probate court did not have jurisdiction either of the person or of the subject matter and its proceedings are void.

If the court had jurisdiction neither of the parties nor of the subject matter, the proceedings would seem to be coram non judice, and would protect no one. 2 Ohio St., 223.

I quote from the report of the decision of the circuit court given on page 9 of printed brief in case of Sater v. Kocher.

I merely state these points but do not consider them; and refer the very carefully prepared argument submitted to me on them to the circuit court, which has authority to determine them.

Hamilton Common Pleas.

Following the judgment of the circuit court I will hold that the proceedings of the probate court being void, it was the duty of the administrator to distribute according to law and the will, and the court had no authority to designate the parties to whom distribution should be made. 39 Ohio St., 369; and that distribution not having been made according to the will, the sureties are concluded by the settlement in the probate court (44 Ohio St., 339), and that judgment may be taken against them on the bond.

REPLEVIN.

[Hamilton Common Pleas, 1894.]

STERN-BLOCн Co v. D. Heinsheimer, Assignee.

REPLEVIN-EFFECT OF REDELIVERY BOND--RETURN OF GOODS.

In replevin, in Ohio, defendant by giving a redelivery bond admits that the property taken is the property mentioned in the writ, and when obliged to return the property, under a condition of the bond, must return the identical goods taken under the writ and cannot escape liability by saying that such goods are not the goods mentioned in the writ of replevin.

Samuel Wolfstein, for plaintiff.

Ramsey, Maxwell & Ramsey, for defendant.

In replevin. Motion for a new trial on the ground that the verdict is against the evidence.

WILSON, J.

The principal ground relied on is that the plaintiff did not prove that the goods and chattels taken were the identical goods and chattels described in the writ. The record shows that after service of the writ the defendant gave a redelivery bond, and that the property taken was returned to him.

In Pennsylvania, when a writ of replevin is issued, if the defendant has the goods, and the sheriff can take them, the defendant must either surrender them, or, if he chooses, he may claim property and retain them in his custody, giving bond to the sheriff for delivering them up, in case the property shall not be found in him; 1 Dall., 156.

It was held in 58 Pa. St., 200, that a defendant in replevin, who claims property in the goods mentioned in the writ, retains them and gives bond. for their return and for indemnity, if the property in them be adjudged against him, conclusively admits that the identical goods mentioned in the writ were left in his hands. To the same effect are 28 Pa. St., 245; 4 Wharton, 500; 15 Serg. & Rawle, 1.

In Ohio the redelivery bond is given after service of the writ, and then the property taken is returned to the defendant. One condition of the redelivery bond is that the defendant will, in a certain contingency, return the goods taken. Having so obligated himself, he must return

Stern-B och Co. v Hensheimer.

the identical goods taken and can not escape liability by saying that those goods are not the identical goods mentioned in the writ.

By giving the redelivery bond he has admitted that the property taken is the property mentioned in the writ. The defendant having admitted that fact, the plaintiff was not required to prove it.

Motion overruled.

LIBEL.

[Hamilton Common Pleas, 1894.]

*CINCINNATI STREET RAILWAY CO V. CINCINNATI DAILY TRIBUNE COMPANY.

1. LIBEL-INNUENDO CANNOT CHANGE SENSE OF WORDS.

In libel, the innuendo cannot add to, enlarge, or change the sense of the words used, which should have their proper and legitimate interpretation, taken in thelight of the extrinsic facts averred.

2. LIBEL WORDS CONCERNING STREET RAILWAY REPORTS OF EARNINGS. Where a street railway company was required by its charter to report quarterly to the city auditor the amount of its gross income from the carriage of passengers, an article in a newspaper, containing the words, "conductors on the various lines have been noticed to smile when allusion was made to the returns made by the company to the auditor, upon which are based the calculations of the city's portion of consolidated earnings, It is said these returns do not by any means cover the real net income of the company. How or by what system of bookkeeping are the real returns arrived at for enlightening the stockholders on dividend day? There is only one method to be followed for correct accomplishments. That is, by the conduct of another complete set of books;" is capable of a construction charging the company with failing to make returns according to agreement contained in its charter, and of keeping two sets of books, and is libelous.

On demurrer.

Aaron A. Ferris and Rufus S. Simmons, attorneys.

SAYLER, J.

The plaintiff avers in the petition that the defendant is engaged in the publication of a newspaper of general circulation in this city, county and state; that the plaintiff is a corporation under the laws of Ohio and is engaged in operating a system of street railroads, of which it is the owner, in the city of Cincinnati and suburbs, under grants from the city of Cincinnati; that by the terms of the said grants it is required quarteryearly to make report to the city auditor of the city of Cincinnati, of the amount of its gross income from the carriage of passengers on nearly all of the roads composed in said system, and to pay into the city treasury of said city a percentage thereof in consideration of the grants to it for the privilege of constructing, maintaining and operating the roads comprising said street railway system; that it has, during the period it has operated said roads, made returns of the amount of its gross receipts to *For decision on motion to make petition more definite and certain, see 1 Dec., 281.

Hamilton Common Pleas.

the auditor of said city; that it has a large capital invested; that its reputation and financial standing was good, etc.; that the defendant, well knowing the premises, contriving, etc., did wrongfully, etc., publish of and concerning the plaintiff a certain false, etc., libel, containing, among other things, the false, etc., matter following (in the head lines): "Double entry. Is that the method employed by the Consolidated? Is there one set of books for the use of the stockholders, and another set for the use of the city auditor at the city hall?" (And in the body of the article): "Right here enters a query that has bothered a good many people who are more or less conversant with the inside workings of the Consolidated office. Conductors on the various lines have been noticed to smile when allusion was made to the returns made by the company to the city auditor, upon which returns are based the calculations of the city's portions of Consolidated earnings. It is said, with more than a degree of seriousness, that these returns do not by any means cover the real net income of the company. Then how or by what system of bookkeeping are the real returns arrived at for purposes of enlightening the stockholders on dividend day? There is only one method to be followed for correct accomplishments. That is by the conduct of another complete set of books." Whereby the plaintiff has been damaged, etc., for which a judgment is asked.

To this the defendant demurs, on the ground that the petition does not state facts sufficient to constitute a cause of action.

It is claimed that the words are entirely consistent with a construction that is in no way libelous; that the keeping of two sets of books is consistent with an honest conduct of the business of the plaintiff, and that there is no imputation of dishonesty in the words as used; that it does not impute any crime to the plaintiff, in asking if there is one set of books for the use of the stockholders and another set for the use of the city auditor at the city hall; that there is no law against such method of bookkeeping; that the charge of keeping two sets of books does not necessarily imply or carry on its face that such was a dishonest method of keeping books; that it is nowhere said in the words that either set of books was false. And to sustain such construction, the defendant cite 40 Minn., 101, in which it was charged of a professional man, "that he has removed his office to his home to save expense," and the court held the words not libelous, because a professional man has a perfect moral and legal right to change the location of his office to his house, in his discretion, for any reasons satisfactory to himself, whether to save expense or otherwise, and that therefore there was no ground for any lega! inference that he was degraded or injured by the publication. The court holds that, aside from special loss or damage, the nature of the charge must be such that the court can legally presume that the party has been injured in his reputation or business, or in his social relation, or has been