Street Railway v. Tribune.

subjected to public scandal, scorn or ridicule, in consequence of the publication. Ib., 102.

Also, 144 Mass., 258, in which an article stating that a dinner furnished by a caterer was "wretched," was served "in such a way that even hungry barbarians might justly object," that "the cigars were simply vile, and the wines not much better," was held not to be libelous. The court say that the words amount only to a condemnation of the dinner and its accompaniments, and that words, relating merely to the quality of articles made, produced, furnished or sold by a person, though false and malicious, are not actionable without special damage unless they go further and attack the individual. But disparagement of property may involve imputation on personal character and conduct, and the question may be nice, whether or not the words extend so far as to be libelous.

Also, 151 Mass., 50, in which the defendant is charged with saying of the plaintiff, a member of the legislature, "I am sorry that the representative from this district has changed his heart; sometimes (slapping his hands on his pocket), a change of heart comes from the pocket;" and the court held the words not actionable. The court says that the words do not fairly imply any actual fact which has happened at the time of speaking them and which involves corruption on the plaintiff's part, but only at most that, in the speaker's opinion, the plaintiff is corrupt in his heart, and open to pecuniary inducements; that the expression of such opinion about a member of the legislature is not actionable per se. The court, in speaking of the mode in which words are to be construed, say: "We are not to travel into the region of conjecture, but must confine ourselves to the words themselves, with the other facts contained in the declaration." Ib., 53

Also, 114 Pa. St., 554, in which the words published of a street car conductor, that he had "been discharged for failing to ring-up all fares collected," were held not libelous, the court say, that the failure to perform the duty of ringing-up all fares might result from mere neglect, or inefficiency, or from motives of dishonesty; failing to ring-up all the fares collected, therefore, does not necessarily imply the fraud or dishonesty of the conductor; it does not import the commission of any crime.

It is well settled that the innuendo can not add to, nor enlarge, nor change the sense of the words. I therefore omit the innuendo contained in the petition, so that the meaning of the words may be determined unassisted by such innuendoes; the words should have their proper and legitimate interpretation (40 Minn., 103), taken in the light of the extrinsic facts averred (151 Mass., 53).

Now it will be noticed that the plaintiff is required to report quarterly to the city auditor the amount of its gross income from the carriage of passengers, and to pay a percentage thereof, in consideration of the grants from the city to maintain, etc., its railroad system. This is a

Hamilton Common Pleas.

contract obligation. The article says that "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 returns 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."

The natural meaning of these words would seem to be that the plaintiff had failed to make returns according to the terms of its agreement; that it had violated its contract obligation.

The article then proceeds, asking the question, "How or by what system of bookkeeping are the real returns arrived at for enlightening the stockholders on dividend day?"

This question can have no meaning whatever if the bookkeeping under which the returns are made to the city is correct, as in that event the stockholders could be enlightened from such bookkeeping.

Then follows the answer: "That is, by the conduct of another complete set of books."

This answer seems to strengthen the inference to be drawn from the question that the bookkeeping, under which the returns are made, is not correct. If there is only one method to be followed for correct accomplishment, viz., the conduct of another complete set of books, what is the natural inference as to the set of books under which the returns are made to the city? Clearly that such set of books is not correct.

53.

The words seem to be "fairly capable" of this meaning. 151 Mass.,

It does not seem to me that the constructions given in the cited cases, or the reasoning of the court in either of them, militates against such construction of the meaning of the words.

It is claimed that the words do not make a direct charge that the plaintiff kept two sets of books for any purpose, but that the words are tentative, and while they suggest that the plaintiff did keep two sets of books, it is only a suggestion of a query.

I think this proposition is answered by Judge Hitchcock, in 7 Ohio, 255: “In many cases there is no more effectual way of destroying character than by dark insinuations; that the individual referred to is suspected; that this, that and the other say that he is guilty. In truth, this is the course more usually resorted to by him who is determined to inflict an aggravated injury upon his neighbor." See, also, Post Publishing Co. v. Maloney, 50 Ohio St., 71.

I hardly think these words spoken of the defendant come within the protection given to fair criticism of a public officer. 17 U. S. (4 Wheat.), 669; Post Publishing Co. v. Maloney, 50 Ohio St., 71.

If the above construction of the words be

be no doubt but that they are actionable per se. 104; 17 Johns., 217; 27 O. S.,295.

The demurrer will be overruled.

correct, I think there can

1 Vent., 263; 3 Brigham,

Geiser v. Heim.

REPLEVIN.

[Hamilton Common Pleas.]

DOROTHEA GEISER V. VAL. HEIM, SHeriff.

1. REPLEVIN AGAINST SHERIFF APPEARANCE-WAIVER.

In replevin against a sheriff, the appearance of the defendant for the purpose of obtaining an order to sell the property pending litigation, and to make new parties, and for the purpose of giving a redelivery bond, being only steps consistent with his duty to retain possession of goods to be sold on execution, does not amount to a waiver of a jurisdictional defense.

2. REQUISITES OF AFFIDAVIT IN REPLEVIN-JURISDICTIONAl Defect.

The failure by plaintiff in replevin to set forth in the affidavit that the property is not claimed under a title acquired mediately or immediately by transfer from one from whom such property had been taken by an execu tion order or process, as provided by Secs. 6613 and 5815, Rev. Stat., as amended, 88 O. L., 273, is a jurisdictional defect,

Maxwell & Creed, for plaintiff.

Tugman & Baker, for defendant.

BUCHWALTER, J. (Mem. of Opinion.)

* * *

The plaintiff brought an action in replevin before a justice of the peace of this county, November 30, 1891, to recover possession of certain chattels, upon which the sheriff had levied and had in his possession in proceedings to sell on an execution issued on a judgment against the plaintiff's husband. The plaintiff filed an affidavit containing the averments necessary under sec. 6613, Rev. Stat., as in force prior to the amendatory act of April 3, 1891, 88 O. L., 273, but did not contain the additional averment that the property "is not claimed by her under a title acquired mediately or immediately by transfer from one from whom such property had been taken by such execution order or process, provided by the amendatory act necessary to be contained in such affidavit in replevin. The justice issued his writ, founded on such affidavit, to the constable, who seized said chattels, caused them to be appraised and turned them over to the plaintiff, upon a bond being given by her in double the appraised value, on December 2, 1891. Summons issued to the sheriff, was served and the cause set for hearing December 5, 1891. Thereafter the cause was continued various times, twice by consent of the parties, and other times by reason of sickness of plaintiff and the magistrate, until judgment was given, and defendant appealed therefrom in due time. In the meantime, however, the sheriff had appeared before the magistrate and given a redelivery bond in accordance with the provisions of the amendatory replevin act.

In this court, the sheriff offered, by motion, to obtain an order of court to sell the chattels, pending the litigation, and to make new parties, which motions were finally overruled. The plaintiff has filed his petition. herein. The sheriff now moves to quash the writ in replevin and to dis

Hamilton Common Pleas.

miss the action, for want of jurisdiction of the person of defendant and the subject matter.

The defendant waived the defect of service (which appears in the record, but not here set out), by his voluntary appearance.

But the court holds that the above appearances and the various steps taken by the sheriff, giving redelivery bond, etc., were but in the line of his consistent duty to retain possession of the goods to be sold on his execution, and not a waiver of his jurisdictional defense.

The court further holds, that the provisions of secs. 6613 and 5815, Rev. Stat., enacted by the amendment of April 3, 1891, 88 O. L., 273, requiring the affidavit to set forth that the plaintiff does not claim under a title acquired by transfer from one from whom such property had been taken by execution order or process, is jurisdictional and intended by the legislature to put a stop to a multiplicity of cross-replevins between the assignees of those who are then parties to causes pending in the court, and by the right of title to the same property, or those whose property has been taken to satisfy a claim in execution against such debtor.

It is as essential as the allegation in the affidavit that such property "was not taken in execution on any order or judgment against the plaintiff, * *

99 *

etc.

It has been frequently held that such provision is jurisdictional and that a motion to quash the writ in replevin to dismiss the action, by reason of the defect in affidavit, or a demurrer, will lie.

The motion was well taken, and must be granted. Where the statutes provide the affidavits should thus allege. Dowell v. Richardson, 10 Ind., 573; Bridges v. Layman, 31 Ind., 384; McCoy v. Beck, 50 Ind., 283; Hines v. Allen, 55 Ind., 114; Westernberger v. Wheaton, 8 Kan.,

179.

The motion to grant a writ and dismiss the cause at the plaintiff's costs will be granted.

Brueger v. Molique.

TRUSTS.

[Hamilton Common Pleas, 1893.]

BRUEGER V. MOLIQUE.

TRUSTS-TITLE TO PROPERTY ACQUIRED THROUGH ILLEGAL BUSINESS. When two parties acquire property through an illegal business the title to which is taken in the name of one of them, the husband of such party who succeeds to such property by inheritance will be held to hold the other party's share in trust for his benefit. The fact that the property was acquired in an illegal business, is not, as between such parties, material and will not defeat an action to establish the trust.

Gholson & Cabell, for plaintiff.

Carr, Dengler & Speiser, for defendant.

The plaintiff and the defendant's deceased wife, while engaged in an unlawful business, acquired property which was taken in the woman's name. Following her death the plaintiff made a demand upon the defendant husband, to whom the property had passed by inheritance, for his share of it. The defendant denied that plaintiff could maintain a legal title in the property, because of the illegal business through which it was acquired.

WILSON, J.

1

Held: That as between the plaintiff and the defendant, the fact that the money with which the property was purchased was acquired in an illegal business cuts no figure in determining the rights of the parties to the present suit in the property. The plaintiff is therefore entitled to a decree declaring that the defendant holds the property in trust for his benefit to the extent of the share which he claims in it.

ADMINISTRATORS.

[Hamilton Probate Court, 1893.]

IN RE APPOINTMENT OF ADMINISTRATRIX.

ADMINISTRATRIX-WHEN WIDOW WILL NOT BE APPOINTED.

The probate court may refuse the application of the widow to be appointed administratrix of her husband's estate when it appears that such appointment would cause friction and unpleasant relations between her and the next of kin, and would interfere seriously with the best interests of the estate.

Application for the appointment of an administratrix in an estate where the issuing of letters to the widow was distasteful and objectionable to the next of kin. The appointment was resisted strenuously, on the ground that the widow was an improper person to administer upon the estate, on account of the inability of the persons most interested in